REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT"), dated as of June
11, 1997, is by and among Wavetek Corporation, a Delaware corporation (the
"COMPANY"), DLJ Merchant Banking Partners II, L.P., DLJ Offshore Partners II,
C.V., DLJ Diversified Partners, L.P., DLJMB Funding II, Inc., UK Investment Plan
1997 Partners, DLJ First ESC L.L.C., DLJ EAB Partners, L.P., DLJ Millennium
Partners, L.P. (collectively, the "DLJ INVESTORS"), Green Equity Investors II,
L.P. ("GEI") and the other Stockholders (as defined below).
RECITALS
A. WHEREAS, pursuant to the terms of the Stock Purchase and
Recapitalization Agreement dated as of May 23, 1997 (the "RECAPITALIZATION
AGREEMENT") by and among the Company, the DLJ Investors, GEI and certain
stockholders of the Company, the DLJ Investors and GEI will purchase from the
Company 1,674,810 and 753,660 shares, respectively, of Common Stock (as defined
below) representing 34.28% and 15.43%, respectively, of the outstanding shares
of Common Stock immediately after the transactions contemplated by the
Recapitalization Agreement.
B. WHEREAS, the Company and the Stockholders are concurrently
entering into a Stockholders Agreement (the "STOCKHOLDERS AGREEMENT") for the
purpose of regulating certain aspects of the Stockholders' relationships with
regard to each other and the Company.
C. WHEREAS, the Stockholders own or have the right to purchase or
otherwise acquire shares of the Common Stock of the Company. The Company and
the Stockholders (as defined below) deem it to be in their respective best
interests to enter into this Agreement to set forth the rights of the
Stockholders in connection with public offerings and sales of the Common Stock.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the Company and the
Stockholders hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms have the following
meanings:
"AFFILIATE" shall mean with respect to any Person, any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such Person. For
purposes of this definition, ownership of 10% or more of the voting common
equity of a person or entity shall be deemed to be control of such person or
entity.
"BOARD" means the Board of Directors of the Company.
"BUSINESS DAY" means any day that is not a Saturday, Sunday or a day
on which banking institutions in New York, New York are not required to be open.
"COMMISSION" means the Securities and Exchange Commission or any other
governmental body or agency succeeding to the functions thereof.
"COMMON STOCK" means the common stock, $.01 par value, of the Company.
"DEMAND REGISTRATION" means a registration requested by a Stockholder
or group of stockholders pursuant to Section 2.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 or any
successor federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"INSTITUTIONAL STOCKHOLDERS" means the DLJ Investors, GEI, Schroder UK
Venture Fund III L.P., Schroder UK Venture Fund III L.P.2, Schroder UK Venture
Fund III Trust (collectively, "Schroder"), Yokogawa Electric Corporation
("Yokogawa") and Gooding if he is not the Chief Executive Officer of the
Company.
"MAJORITY OF REGISTERING STOCKHOLDERS" means, with respect to a
registration that includes Registrable Shares, those Stockholders who, at the
time in question, hold at least a majority of the Registrable Shares included or
proposed to be included in such registration.
"MATERIAL TRANSACTION" means any material transaction in which the
Company or any of its Subsidiaries proposes to engage or is engaged, including a
purchase or sale of assets or securities, financing, merger, consolidation,
tender offer, or other material corporate development, and with respect to which
the Board reasonably has determined in good faith that compliance with this
Agreement may reasonably be expected to either materially interfere with the
Company's or such Subsidiary's ability to consummate such transaction in a
timely fashion or require the Company to disclose material, non-public
information or such material corporate development prior to such time as it
would otherwise be required to be disclosed.
"OTHER SECURITIES" means at any time shares of Common Stock (or other
securities convertible into, or exchangeable for, shares of Common Stock) which
do not constitute Registrable Shares and which are owned by Persons who are
entitled to registration rights under other agreements.
"PERMITTED TRANSFEREE" means any of the following who agrees to be
bound by and become a party to the Stockholders Agreement: (i) with respect to
transfers by the Institutional Stockholders, any Affiliates thereof and (ii)
with respect to transfers by Gooding or
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the Management Stockholders, a spouse, child, grandchild, stepchild or a child
of a stepchild thereof or a trust as to which Gooding, the Management
Stockholder or such spouse, child, grandchild, stepchild or child of a stepchild
thereof exercises substantial control over the investment of the trust assets.
Upon (i) execution and delivery by a Permitted Transferee of the Stockholders
Agreement and (ii) receipt of shares of Common Stock from the transferring
Stockholder, the Permitted Transferee shall be deemed to be a "Stockholder" for
all purposes under this Agreement.
"PERSON" shall be construed broadly and shall include an individual, a
partnership, a corporation, an association, a joint stock company, a limited
liability company, a trust, a joint venture, an unincorporated organization and
a governmental entity or any department, agency or political subdivision
thereof.
"PRIMARY SHARES" means at any time the authorized but unissued shares
of Common Stock and shares of Common Stock held by the Company in its treasury
or any security convertible into or exchangeable for unissued shares of Common
Stock.
"PROSPECTUS" means the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"PUBLIC OFFERING" means the closing of a public offering of Common
Stock pursuant to a Registration Statement declared effective under the
Securities Act, except that a Public Offering shall not include an offering of
securities to be issued as consideration in connection with a business
acquisition or an offering of securities issuable pursuant to an employee
benefit plan.
"QUALIFIED IPO" means the initial underwritten Public Offering by the
Company of Common Stock registered with the Commission under the Act (i) after
which the Common Stock is included for quotation on the Nasdaq National Market
or listed on a national securities exchange and (ii) having an aggregate
offering price to the public (before underwriters' discounts and commissions) of
at least $20,000,000.
"REGISTRABLE SHARES" means Restricted Shares that constitute Common
Stock.
"REGISTRABLE DATE" means the date upon which the Registration
Statement pursuant to which the Company shall have initially registered shares
of Common Stock under the Securities Act for sale in a Public Offering shall
have been declared effective by the Commission.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any of the Registrable Shares and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the
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Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"RESTRICTED SHARES" means shares of Common Stock held by the
Stockholders, including (i) shares of Common Stock which may be issued as a
dividend or distribution, (ii) any other securities which by their terms are
exercisable or exchangeable for or convertible into Common Stock, and (iii) any
securities received in respect of such shares of Common Stock (including
securities described in Section 13). Restricted Shares shall cease to be
Restricted Shares when (A) they have been registered under the Securities Act,
the Registration Statement in connection therewith has been declared effective
and they have been disposed of pursuant to and in the manner described in such
effective Registration Statement, (B) they are sold or distributed pursuant to
Rule 144 or may be sold or distributed by the holder thereof pursuant to Rule
144(k), (C) they may be sold or distributed pursuant to Rule 144 by such
Stockholder within a three-month period, (D) they have been otherwise
transferred and new certificates or other evidences of ownership for them not
bearing a restrictive legend and not subject to any stop transfer order or other
restriction on transfer have been delivered by the Company or the issuer of
other securities issued in exchange for the Restricted Shares, or (E) they have
ceased to be outstanding.
"RULE 144" means Rule 144 promulgated under the Securities Act or any
successor rule thereto or any complementary rule thereto.
"SECURITIES ACT" means the Securities Act of 1933 or any successor
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect from time to time.
"STOCKHOLDERS" means the DLJ Investors, the Institutional
Stockholders, Dr. Terence J. Gooding ("Gooding"), and the members of management
who own shares in the Company ("the Management Stockholders"), and each of their
respective Permitted Transferees.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement dated as of
June 11, 1997, among the Company and the Stockholders named therein, as the same
may be amended, supplemented, modified or restated.
"SUBSIDIARY" means, with respect to any Person, any other Person of
which the securities having a majority of the ordinary voting power in electing
the board of directors (or other governing body), at the time as of which any
determination is being made, are owned by such first Person either directly or
through one or more of its Subsidiaries.
2. DEMAND REGISTRATION.
(a) From and after the one year anniversary of the date of the
Stockholders Agreement, if the Company shall be requested by the DLJ
Investors or their Permitted Transferees at any time to effect the
registration under the Securities Act of all or a portion of their
Registrable Shares, the Company shall use its best efforts promptly to
effect such registration in accordance with the provisions of
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this Agreement. The number of shares required to be registered must,
in the good faith judgment of the DLJ Investors, have a fair market
value of at least $20,000,000 if the Demand Registration would
constitute a Qualified IPO, and a market value of $10,000,000 in all
other cases. The DLJ Investors shall have the right to request three
such Demand Registrations.
(b) After the consummation of a Qualified IPO, (i) any Stockholder other
than the DLJ Investors or their Permitted Transferrees holding 10% or
more of the outstanding Common Stock shall have the right to request
two Demand Registrations from the Company, and (ii) any other
Stockholder shall have the right to request one Demand Registration
from the Company; PROVIDED in each case that the number of Registrable
Shares to be registered must have, in the reasonable opinion of the
proposed managing underwriter, a fair market value of at least
$10,000,000.
(c) From and after the two year anniversary of this Agreement,
Stockholders holding in the aggregate 40% or more of the outstanding
Common Stock shall have the right jointly to request one Demand
Registration from the Company at any time, if such registration would
constitute a Qualified IPO.
(d) If such Demand Registration pursuant to Section 2(a), 2(b) or 2(c)
above would constitute a Qualified IPO, the provisions of the
Stockholders' Agreement would govern. Promptly after receiving
request for a Demand Registration that does not constitute a Qualified
IPO pursuant to Section 2(a), 2(b) or 2(c) above, the Company shall
provide written notice thereof to all Stockholders. Any Stockholder
who has the right at such time to transfer shares of Common Stock
under Article III of the Stockholders Agreement may, within 15
Business Days of the receipt of the notice from the Company, give
written notice to the Company that such Stockholder wishes to
participate in the proposed Demand Registration, which notice shall
specify the number of Registrable Shares such Stockholder desires to,
and under the Stockholders Agreement is permitted to, include in such
registration.
(e) Anything contained in Section 2(a), 2(b) or 2(c) to the contrary
notwithstanding, the Company shall not be obligated to effect any
Demand Registration under the Securities Act pursuant to Section 2(a),
2(b) or 2(c), except in accordance with the following provisions:
(i) the Company shall not be obligated to use its best efforts
to file and cause to become effective any Registration Statement
during any period in which any other Registration Statement
(other than on Form S-4 or Form S-8 promulgated under the
Securities Act or any successor forms thereto) pursuant to which
Primary Shares are to be or were sold has been
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filed and not withdrawn or has been declared effective within the
prior 180 days;
(ii) the Company may delay the filing or effectiveness of any
Registration Statement for a period of up to 180 days after the
date of a request for registration pursuant to this Section 2 if
a Material Transaction exists at such time;
(iii) at any time prior to the effectiveness of a Registration
Statement, the Company may, in its sole discretion, convert a
Demand Registration pursuant to Section 2 into a registration
pursuant to Section 3, in which case the provisions (including
those governing inclusion of shares) set forth in Section 3 shall
apply and such registration so converted will not count as a
Demand Registration pursuant to this Section 2;
(iv) with respect to any Demand Registration pursuant to this
Section 2, the Company may include in such registration any
Primary Shares, Other Securities and/or other securities;
PROVIDED, HOWEVER, that if the managing underwriter advises the
Company that the inclusion of all Registrable Shares, Primary
Shares, Other Securities and/or other securities proposed to be
included in such registration would interfere with the successful
marketing (including pricing) of the Registrable Shares that are
the subject of such Demand Registration, then the number of
Registrable Shares, Primary Shares, Other Securities and/or other
securities proposed to be included in such registration shall be
included in the following order:
(A) FIRST, all Registrable Shares requested to be
included in such Demand Registration by the Stockholders
who requested such registration pursuant to Section 2(a),
2(b) or 2(c) and all Registrable Shares requested to be
included by other Stockholders pursuant to Section 2(d),
PRO RATA among all such Stockholders based on the number
of Registrable Shares owned.
(B) SECOND, the Primary Shares; and
(C) THIRD, the Other Securities.
(v) at any time before the Registration Statement covering
Registrable Shares becomes effective, the Stockholder or group of
Stockholders which requested such registration pursuant to this
Section may request the Company to withdraw or not to file the
Registration Statement; and
(vi) the Company may, at its sole option, elect to satisfy a
request for a Demand Registration pursuant to this Section on
Form S-2 or Form S-3
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promulgated under the Securities Act (or any successor forms
thereto), if such forms are then available to the Company.
(f) The Company will not be required to effect more than one Demand
Registration in any twelve-month period.
3. PIGGYBACK REGISTRATION.
(a) If the Company at any time proposes for any reason to register
(whether for itself or others or whether pursuant to a conversion of a
Demand Registration under Section 2(d)(iii)) any of its securities
under the Securities Act (other than (i) on Form S-4 or Form S-8
promulgated under the Securities Act or any successor forms thereto or
(ii) in connection with a Qualified IPO, in which case the provisions
of the Stockholders' Agreement shall govern), it shall promptly give
written notice to the Stockholders of its intention to so register
such securities.
(b) Any Stockholder who may transfer shares of Common Stock under the
Stockholders Agreement may deliver to the Company within 20 Business
Days after delivery of such notice of the proposed offering by the
Company, a written request to include in the registration all or a
portion of such Stockholder's Registrable Shares (which request shall
specify the number of Registrable Shares proposed to be included in
such registration). The Company shall use its best efforts to cause
all such Registrable Shares to be included in such registration on the
same terms and conditions as the securities otherwise being sold in
such registration; PROVIDED, HOWEVER, that if the managing underwriter
advises the Company that the inclusion of any or all Registrable
Shares and the Other Securities other securities requested to be
included in such registration would materially interfere with the
successful marketing (including pricing) of the Primary Shares or
other securities proposed to be registered by the Company, then the
number of Primary Shares, Registrable Shares, Other Securities and
other securities proposed to be included in such registration shall be
included in the following order:
(i) FIRST, the Primary Shares proposed by the Company to be
sold for its own account,
(ii) SECOND,
(A) in the case of a Demand Registration converted by
the Company pursuant to 2(e)(iii), the Registrable Shares
requested to be registered by the requesting Stockholder;
and
(B) such Registrable Shares requested by Stockholders
to be included in such registration pursuant to this
Section 3, PRO RATA among the Stockholders referred to in
this paragraph 3(b)(ii) based on the number of Registrable
Shares owned; and
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(iii) THIRD, the Other Securities.
The Company shall have the right to withdraw a registration initially
proposed by it, in which case all related requests for Piggyback Registration
will be terminated.
4. HOLDBACK AGREEMENT.
(a) If the Company at any time shall register its securities under the
Securities Act for sale to the public pursuant to an underwritten
offering to the extent the following restrictions are legally
permitted, the Stockholders and their respective Permitted Transferees
shall not sell publicly, make any short sale of, grant any option for
the purchase of, or otherwise dispose publicly of, any securities of
the Company similar to those being registered (other than securities
included in such registration) without the prior written consent of
the Company, for a period designated by the Company in writing to the
Stockholders, which period shall not begin earlier than 14 days prior
to the effectiveness of the Registration Statement pursuant to which
such public offering shall be made and shall not last more than (i)
180 days, or (ii) a shorter period agreed upon by the Company and the
managing underwriters of an underwritten offering, in each case after
the closing of the sale of securities pursuant to such Registration
Statement. The Company shall obtain the agreement of any Person
(other than a Stockholder) permitted to sell securities in a
registration to be bound by and to comply with this Section 4 with
respect to such registration as if such Person was a Stockholder
hereunder.
5. PREPARATION AND FILING.
(a) If and whenever the Company is under an obligation pursuant to the
provisions of this Agreement to use its best efforts to effect the
registration of, and keep effective a Registration Statement for, any
Registrable Shares, the Company shall, as expeditiously as
practicable:
(i) use its best efforts to cause a Registration Statement
that registers such Registrable Shares to become and remain
effective for a period of 90 days (extended for such period of
time as the Stockholders are required to discontinue disposition
of Registrable Shares pursuant to Section 5(b) below) or until
all of such Registrable Shares have been disposed of (if
earlier);
(ii) furnish, at least five Business Days before the initial
filing of a Registration Statement that relates to the
registration of such Registrable Shares, to one counsel (the
"Stockholders' Counsel") selected by a Majority of Registering
Stockholders, copies of all such documents proposed to be filed
(it being understood that such five-Business-Day period need not
apply to a Prospectus relating thereto or any amendments or
supplements relating to such a Registration Statement or
Prospectus, proposed to be filed so long as such drafts are
supplied to the
8
Stockholders' Counsel in advance of the proposed filing by a
period of time that is customary and reasonable under the
circumstances);
(iii) notify the Stockholders whose Registrable Shares are
included therein of the effectiveness of such Registration
Statement and prepare and promptly file with the Commission such
amendments and supplements to such Registration Statement and the
Prospectus used in connection therewith as may be necessary to
(A) keep such Registration Statement effective for at least a
period of 90 days (extended for such period of time as
Stockholders are required to discontinue disposition of
Registrable Shares pursuant to Section 5(b) below) or until all
of such Registrable Shares have been disposed of (if earlier),
(B) correct any statements or omissions if any event with respect
to the Company shall have occurred as a result of which any such
Registration Statement or Prospectus as then in effect would
include an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not
misleading, and (C) comply with the provisions of the Securities
Act with respect to the sale or other disposition of such
Registrable Shares;
(iv) notify in writing the Stockholders' Counsel, and the
Stockholders whose Registrable Shares may be included in such
Registration Statement, promptly of (A) the receipt by the
Company of any notification with respect to any comments by the
Commission with respect to such Registration Statement or
Prospectus or any amendment or supplement thereto or any request
by the Commission for the amending or supplementing thereof or
for additional information with respect thereto, (B) the receipt
by the Company of any notification or written information with
respect to the issuance or threatened issuance by the Commission
of any stop order suspending the effectiveness of such
Registration Statement or Prospectus or any amendment or
supplement thereto or the initiation or threatening of any
proceeding for that purpose (and the Company shall use its best
efforts to prevent the issuance thereof or, if issued, to obtain
its withdrawal) and (C) the receipt by the Company of any
notification with respect to the suspension of the qualification
of such Registrable Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purposes;
(v) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws
of such jurisdictions as the Stockholders reasonably request and
do any and all other acts and things which may be reasonably
necessary or advisable to enable the Stockholders to consummate
the disposition in such jurisdictions of the Registrable Shares
owned by the Stockholders; PROVIDED, HOWEVER, that the Company
will not be required to qualify generally to do business, subject
itself to general taxation or consent to general service of
process in any
9
jurisdiction where it would not otherwise be required to do so
but for this clause (v) or to provide any material undertaking or
make any changes in its By-laws or Certificate of Incorporation
which the Board determines to be contrary to the best interests
of the Company;
(vi) furnish to the Stockholders holding such Registrable
Shares such number of copies of a summary Prospectus, if any, or
any other Prospectus, including a Preliminary Prospectus, in
conformity with the requirements of the Securities Act, and such
other documents as such Stockholders may legally require and may
reasonably request in order to facilitate the public sale or
other disposition of such Registrable Shares;
(vii) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the Stockholders
holding such Registrable Shares to consummate the disposition of
such Registrable Shares;
(viii) notify the Stockholders holding such Registrable Shares
on a timely basis at any time when a Prospectus relating to such
Registrable Shares is required to be delivered under the
Securities Act within the appropriate period mentioned in
clause (i) of this Section 5(a), of the happening of any event as
a result of which the Prospectus included in such Registration
Statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and prepare and furnish to such Stockholders a
reasonable number of copies of, and file with the Commission, a
supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the offerees of
such shares, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading;
(ix) subject to the execution of confidentiality agreements in
form and substance satisfactory to the Company, make available
upon reasonable notice and during normal business hours, for
inspection by the Stockholders holding Registrable Shares
requested to be included in such registration, any underwriter
participating in any disposition pursuant to such Registration
Statement and any attorney, accountant or other agent retained by
the Stockholders or underwriter (collectively the "Inspectors"),
all pertinent financial and other records, pertinent corporate
documents and properties of the Company (collectively, the
"Records"), and cause the Company's officers, directors an
employees to supply all information
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(together with the Records, the "Information") reasonably
requested by any such Inspector, in each case as shall be
reasonably necessary to enable them to exercise their due
diligence responsibility in connection with such Registration
Statement; PROVIDED, HOWEVER, that any of the Information that
the Company determines in good faith to be confidential, and of
which determination the Inspectors are so notified, shall not be
disclosed by the Inspector unless (A) the disclosure of such
Information is necessary to avoid or correct a misstatement or
omission in the Registration Statement or Prospectus, (B) the
release of such Information is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction or, upon the
written advice of counsel, is otherwise required by law, or (C)
such Information has been made generally available to the public,
and the Stockholders agree that they will, upon learning that
disclosure of such Information is sought in a court or competent
jurisdiction, give notice to the Company and allow the Company,
at the Company's expense, to undertake appropriate action to
prevent disclosure of the Information deemed confidential;
(x) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary
form and at customary times and covering matters of the type
customarily covered by cold comfort letters;
(xi) use its best efforts to obtain from its counsel an
opinion or opinions in customary form naming the Stockholders as
additional addressees or parties who may rely thereon;
(xii) provide a transfer agent and registrar (which may be the
same entity and which may be the Company) for such Registrable
Shares;
(xiii) issue to any underwriter to which the Stockholders
holding such Registrable Shares may sell shares in such offering
certificates evidencing such Registrable Shares;
(xiv) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or,
if the Common Stock is not listed on a national securities
exchange, use its best efforts to qualify such Registrable Shares
for inclusion on the Nasdaq National Market;
(xv) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make
available to its securityholders, as soon as reasonably
practicable, earning statements (which need not be audited)
covering a period of 12 months beginning within three months
after the effective date of the Registration Statement, which
earning statements shall satisfy the provisions of Section 11(a)
of the Securities Act; and
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(xvi) use its best efforts to take all other steps to necessary
to effect the registration of, and maintain an effective
Registration Statement with respect to, such Registrable Shares
contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice
from the Company of any event of the kind described in Section
5(a)(viii) or Section 6 hereof, shall forthwith discontinue
disposition of the Registrable Shares pursuant to the
Registration Statement covering such Registrable Shares until
such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(a)(viii) hereof,
and, if so directed by the Company, such holder shall deliver to
the Company all copies, other than permanent file copies then in
such holder's possession, of the most recent Prospectus covering
such Registrable Shares at the time of the receipt of such
notice.
6. SUSPENSION.
Anything contained in this Agreement to the contrary notwithstanding,
the Company may, by notice in writing to each holder of Registrable Shares to
which a Prospectus relates, require such holder to suspend, for up to 90 days
(the "Suspension Period"), the use of any Prospectus included in a Registration
Statement filed under Section 2 or 3 hereof if a Material Transaction exists
that would require an amendment to such Registration Statement or supplement to
such Prospectus (including any amendment or supplement made through
incorporation by reference to a report filed under the Exchange Act). The
Company may (but shall not be obligated to) withdraw the effectiveness of any
Registration Statement subject to this provision.
7. EXPENSES.
All expenses (other than underwriting discounts and commissions
relating to the Registrable Shares, as provided in the last sentence of this
Section 7) incurred by the Company in complying with Section 5, including,
without limitation, all registration and filing fees (including all expenses
incident to filings with the National Association of Securities Dealers, Inc.),
fees and expenses of complying with securities and blue sky laws, printing
expenses, fees and expenses of the Company's counsel and accountants and fees
and expenses of the Stockholders' Counsel (up to a maximum of $25,000), shall be
paid by the Company; PROVIDED, HOWEVER, that all underwriting discounts and
selling commissions applicable to the Registrable Shares and Other Shares shall
be borne by the holders selling such Registrable Shares and Other Shares, in
proportion to the number of Registrable Shares and Other Shares sold by each
such holder.
8. INDEMNIFICATION.
(a) In connection with any registration of any Registrable Shares under
the Securities Act pursuant to this Agreement, the Company shall
indemnify and hold harmless, to the fullest extent permitted by law,
each holder of Registrable Shares, each underwriter, broker or any
other Person acting on behalf of the holders of Registrable Shares and
each other Person, if any, who controls any of the
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foregoing Persons within the meaning of the Securities Act (each such
indemnified Person being referred to herein as an "Indemnified
Person") against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which any of the foregoing
Persons may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
allegedly untrue statement of a material fact contained in or
incorporated by reference in the Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
preliminary Prospectus or final Prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of
any Registrable Shares, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading or, with respect to any Prospectus, necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or any violation by the Company of the
Securities Act or state securities or blue sky laws applicable to the
Company and relating to action or inaction required of the Company in
connection with such registration or qualification under such state
securities or blue laws; and shall promptly reimburse the Indemnified
Persons for any legal or other expenses reasonably incurred by any of
them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to any such Indemnified
Person to the extent that any such loss, claim, damage, liability or
action (including any legal or other expenses incurred) arises out of
or is based upon an untrue statement or allegedly untrue statement or
omission or alleged omission made in said Registration Statement,
preliminary Prospectus, final Prospectus, amendment, supplement or
document incident to registration or qualification of any Registrable
Shares in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Indemnified Person
specifically for use in the preparation thereof; PROVIDED FURTHER,
HOWEVER, that the foregoing indemnity agreement is subject to the
condition that, insofar as it relates to any untrue statement,
allegedly untrue statement, omission or alleged omission made in any
preliminary Prospectus but eliminated or remedied in the final
Prospectus (filed pursuant to Rule 424 of the Securities Act), such
indemnity agreement shall not inure to the benefit of the any
Indemnified Person from whom the Person asserting any loss, claim,
damage, liability or expense purchased the Restricted Shares which are
the subject thereof, if a copy of such final Prospectus had been made
available to such Indemnified Person and such final Prospectus was not
delivered to such Person with or prior to the written confirmation of
the sale of such Registrable Shares to such Person.
(b) In connection with any registration of Registrable Shares under the
Securities Act pursuant to this Agreement, each holder of Registrable
Shares being registered shall, severally and not jointly, to the
fullest extent permitted by law, indemnify
13
and hold harmless (in the same manner and to the same extent as set
forth in Section 8(a) above) the Company, each director of the
Company, each officer of the Company who shall have signed such
Registration Statement, each agent, underwriter, broker or other
Person acting on behalf of the Company, each other holder of
Registrable Shares or Other Shares and each Person who controls any of
the foregoing Persons within the meaning of the Securities Act with
respect to any statement or omission from such Registration Statement,
any preliminary Prospectus or final Prospectus contained therein or
otherwise filed with the Commission, any amendment or supplement
thereto or any document incident to registration or qualification of
any Registrable Shares, if such statement or omission was made in
reliance upon and in conformity with written information furnished to
the Company or such underwriter by or on behalf of such holder
specifically for use in connection with the preparation of such
Registration Statement, preliminary Prospectus, final Prospectus,
amendment, supplement or document; PROVIDED, HOWEVER, that the maximum
amount of liability in respect of such indemnification shall be
limited, in the case of each holder of Registrable Shares, to an
amount equal to the net proceeds actually received by such holder from
the sale of Registrable Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in Section
8(a) or (b), such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to
the latter of the commencement of such action; PROVIDED, HOWEVER, that
the indemnified party's failure to give such notice shall not release,
relieve or in any way affect the indemnifying party's obligation
hereunder to indemnify the indemnified party unless and to the extent
that the rights of the indemnifying party are prejudiced thereby. In
case any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof;
PROVIDED, HOWEVER, that if any indemnified party shall have reasonably
concluded (based on the written advice of counsel) that there may be a
conflict of interest between the indemnified party and the
indemnifying party, or that such claim or litigation involves or could
have an effect upon matters beyond the scope of the indemnity
agreement provided in this Section 8, the indemnifying party shall not
have the right to assume the defense of such action on behalf of such
indemnified party and such indemnifying party shall reimburse such
indemnified party and any Person controlling such indemnified party
for that portion of the fees and expenses of any counsel retained by
the indemnified party which is reasonably related to the matters
covered by the indemnity agreement provided in this Section 8.
14
(d) If the indemnification provided for in this Section 8 is held by a
court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or action
referred to herein (other than as a result of the applicability of the
two provisos in Section 8(a)), then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amounts paid or payable by such indemnified party as a result of such
loss, claim, damage, liability or action in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on
the one hand and of the indemnifying party on the other in connection
with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
9. UNDERWRITING AGREEMENT.
(a) Notwithstanding the provisions of Sections 4, 5, 7 and 8, to the
extent that the Company and at least the Majority of Registering
Stockholders shall enter into an underwriting or similar agreement
that contains provisions which conflict with any provision of any such
Sections, the provisions contained in such agreement shall control
with respect to such underwritten offering.
(b) If any registration pursuant to Section 2 is requested to be an
underwritten offering, the Company shall negotiate in good faith to
enter into a reasonable and customary underwriting agreement with the
underwriters thereof. The Company shall be entitled to receive
indemnities from lead institutions, underwriters, selling brokers,
dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided
above with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or Registration
Statement and to the extent customarily given their role in such
distribution.
(c) No Stockholder may participate in any registration hereunder that is
underwritten unless such Stockholder agrees to (i) sell such
Stockholder's Registrable Shares proposed to be included therein on
the basis provided in any underwriting arrangements approved by the
Company and the Majority of Registering Stockholders (which approval
shall not be unreasonably withheld by such Stockholders) and (ii) as
expeditiously as possible, notify the Company of the occurrence of any
event concerning such Stockholder as a result of which the Prospectus
relating to such registration contains an untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to
15
make the statements therein, in light of the circumstances under which
they were made, not misleading.
10. NOMINEES FOR BENEFICIAL OWNERS.
In the event that any Registrable Shares are held by a nominee for the
beneficial owner thereof, the beneficial owner thereof may, at its election by
written notice to the Company effective upon receipt by the Company, be treated
as a Stockholder for purposes of any request or other action by any Stockholder
pursuant to this Agreement or any determination of any number or percentage of
shares of Registrable Shares held by any Stockholder contemplated by this
Agreement. If the beneficial owner of any Registrable Shares so elects, the
Company may require assurances reasonably satisfactory to it of such owner's
beneficial ownership of such Registrable Shares. Prior to receipt by the
Company of written notice contemplated hereby, any action taken by any nominee
shall be binding upon any such beneficial owner.
11. INFORMATION BY HOLDER.
The Stockholders shall furnish to the Company such written information
regarding the Stockholders and the distribution proposed by the Stockholders as
the Company may reasonably request in writing and as shall be reasonably
required in connection with any registration, qualification or compliance
referred to in this Agreement.
12. EXCHANGE ACT COMPLIANCE.
From the Registration Date or such earlier date as a Registration
Statement filed by the Company pursuant to the Exchange Act relating to any
class of the Company's securities shall have become effective, the Company shall
comply with all of the reporting requirements of the Exchange Act applicable to
it and shall comply with all other public information reporting requirements of
the Commission which are conditions to the availability of Rule 144 for the sale
of the Common Stock. The Company shall cooperate with the Stockholders in
supplying such information as may be necessary for the Stockholders to complete
and file an information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
13. MERGERS, ETC.
The Company shall not, directly or indirectly, enter into any merger,
consolidation, or reorganization in which the Company shall not be the surviving
corporation unless the surviving corporation shall, prior to such merger,
consolidation or reorganization, agree in writing to assume the obligations of
the Company under this Agreement, and for that purpose references hereunder to
"Registrable Shares" shall be deemed to include the shares of common stock, if
any, that the Stockholders would be entitled to receive in exchange for Common
Stock under any such merger, consolidation or reorganization; PROVIDED, HOWEVER,
that, to the extent the Stockholders receive securities that are by their terms
convertible into shares of common stock of the issuer thereof, then only such
shares of common stock as are issued or
16
issuable upon conversion of said convertible securities shall be included within
the definition of "Registrable Securities."
14. NEW CERTIFICATES.
As expeditiously as possible after the effectiveness of any Registration
Statement filed pursuant to this Agreement, the Company will deliver in exchange
for any legended certificate evidencing Restricted Shares so registered, new
stock certificates not bearing any restrictive legends, PROVIDED that in the
event less than all of the Restricted Shares evidenced by such legended
certificate are registered, the holder thereof agrees that a new certificate
evidencing such unregistered shares will be issued bearing the appropriate
restrictive legend.
15. SELECTION OF UNDERWRITER.
The Company shall not, at any time after the date hereof, grant any
registration rights that conflict with, or have any priority over, the
registration rights granted hereby. The DLJ Investors will have the right to
select the underwriters in any public offering resulting from an exercise by it
of a Demand Registration.
16. TERMINATION.
This Agreement shall terminate and be of no further force or effect
when there shall no longer be any Registrable Shares outstanding.
17. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the Company and the Stockholders and, subject to Section
17(b), the respective successors and assigns of the Company and the
Stockholders. Except as otherwise expressly provided in Sections 2, 3
and 4, this Agreement is not intended to create any third party
beneficiaries.
(b) ASSIGNMENT. Each Stockholder may assign its rights hereunder to any
Permitted Transferee of Registrable Shares; PROVIDED, HOWEVER, that
such Permitted Transferee shall, as a condition to the effectiveness
of such assignment, be required to execute a counterpart to this
Agreement agreeing to be treated as a Stockholder, whereupon such
Permitted Transferee shall have the benefits of and shall be subject
to the restrictions contained in this Agreement as if such Permitted
Transferee was originally included in the definition of a Stockholder
and had originally been a party hereto.
(c) SEVERABILITY. It is the desire and intent of the parties hereto that
the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Agreement shall be adjudicated by a court
of competent jurisdiction to be invalid, prohibited or
17
unenforceable for any reason, such provision, as to such jurisdiction,
shall be ineffective, without invalidating the remaining provisions of
this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing,
if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall,
as to such jurisdiction, be so narrowly drawn, without invalidating
the remaining provisions of this Agreement or affecting the validity
or enforceability of such provision in any other jurisdiction.
(d) ENTIRE AGREEMENT. This Agreement and the other writings referred to
herein or delivered pursuant hereto contain the entire agreement among
the parties with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous arrangements or understandings
with respect hereto and thereto.
(e) NOTICES. All communications hereunder to any party shall be deemed to
be sufficient if contained in a written instrument delivered in person
or sent by telecopy, nationally-recognized overnight courier
guaranteeing next day delivery or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such
party at its address below or such other address as such party may
hereafter designate in writing:
if to the Company to:
Wavetek Corporation
11995 El Camino Real, Suite 301
San Diego, CA 92130
Attention: Chief Executive Officer
Telecopier: (619) 793-2310
if to any Stockholder, to such
Stockholder at the address indicated
on SCHEDULE I hereto.
All such notices, requests, consents, and other communications shall
be deemed to have been given and received (i) in the case of personal delivery
or delivery by telecopy, on the date of such delivery, (ii) in the case of
dispatch by nationally-recognized overnight courier, on the next Business Day
following such dispatch and (iii) in the case of mailing, on the fifth Business
Day after the posting thereof.
(f) MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and provisions of this
Agreement may not be modified or amended, nor may any provision be
waived, except pursuant to a writing signed by the Company and the
Stockholders holding at least 85% of the outstanding Registrable
Shares; PROVIDED, HOWEVER, that no such modification, amendment or
waiver that would treat any Stockholder in a non-ratable,
discriminatory manner shall be made without the prior written
18
consent of such Stockholder. The failure of any party to enforce any
of the provisions of this Agreement shall in no way be construed as a
waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in
accordance with its terms. The Stockholders, to the fullest extent
permitted by applicable laws, release the members of the Board from
any and all claims for breach of fiduciary duty arising out of the
application of this Section 17(f).
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be
an original instrument, but all such counterparts shall constitute but
one agreement.
(h) HEADINGS. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE THAT
WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL
LAWS OF THE STATE OF NEW YORK WILL CONTROL THE INTERPRETATION AND
CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION'S
CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME
OTHER JURISDICTION WOULD ORDINARILY APPLY.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) NOUNS AND PRONOUNS. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or
neuter forms and the singular form of nouns and pronouns shall include
the plural and vice-versa.
CONSTRUCTION. Where specific language is used to clarify by example a
general statement contained herein, such specific language shall not be deemed
to modify, limit, or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party.
19
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement on the date first written above.
WAVETEK CORPORATION
By: /s/ Terence J. Gooding
---------------------------------
Name: Dr. Terence J. Gooding
Title: Chief Executive Officer
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ David B. Wilson
---------------------------------
Name: David B. Wilson
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ David B. Wilson
---------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
By: /s/ David B. Wilson
---------------------------------
Name:
Title:
20
DLJMB FUNDING II, INC.
By: /s/ David B. Wilson
---------------------------------
Name:
Title:
UK INVESTMENT PLAN 1997 PARTNERS
By: Donaldson, Lufkin & Jenrette, Inc.
General Partner
By: /s/ David B. Wilson
---------------------------------
Name:
Title:
DLJ FIRST ESC L.L.C.
By: DLJ LBO Plans Management
Corporation As Manager
By: /s/ David B. Wilson
---------------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ David B. Wilson
---------------------------------
Name:
Title:
21
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ David B. Wilson
---------------------------------
Name:
Title:
GREEN EQUITY INVESTORS II, L.P.
By: Grand Avenue Capital Partners, L.P.
By: Grand Avenue Capital Corporation,
its general partner
By: /s/ Peter Nolan
---------------------------------
Name:
Title:
DR. TERENCE J. GOODING
By: /s/ Terence J. Gooding
---------------------------------
Dr. Terence J. Gooding
SCHRODER UK VENTURE FUND III
A Group consisting of three entities:
Schroder UK Venture Fund III Trust
Schroder UK Venture Fund III L.P.
Schroder UK Venture Fund III L.P. 2
By: SCHRODER VENTURE MANAGERS LIMITED,
Manager
By: /s/ Peter L. Everson
----------------------------
Peter L. Everson, Director of the
Manager of each of the three
entities comprising the Fund
Title:
22
YOKOGAWA ELECTRIC CORPORATION
By: /s/ Tetsuji Ishizuka
---------------------------------
Name: Tetsuji Ishizuka
Title: General Counsel
BARBARA A. GOODING
TERENCE J. AND BARBARA A. GOODING CRUT
TERENCE J. GOODING GRAT 1
TERENCE J. GOODING GRAT 2
BARBARA A. GOODING GRAT
GOODING FAMILY FOUNDATION
GOODING INVESTMENTS, INC.
ANTHONY P. GOODING
ANTHONY P. GOODING CRUT
TERENCE J. GOODING, JR.
TERENCE J. GOODING, JR. CRUT
PAUL L. GOODING
PAUL L. GOODING CRUT
KATHRYN A. VALVERDE
KATHRYN A. VALVERDE CRUT
MATTHEW T. LONDON
MATTHEW T. LONDON CRUT
REBECCA J. BELLATI
REBECCA J. BELLATI CRUT
VICTORIA L. GOODING
VICTORIA L. GOODING CRUT
KYLE L. GOODING INTER VIVOS TRUST
AMANDA L. GOODING INTER VIVOS TRUST
PATRICK A GOODING INTER VIVOS TRUST
AMANDA N. MCPHERSON INTER VIVOS TRUST
CODY C. MCPHERSON INTER VIVOS TRUST
TERENCE M. LONDON INTER VIVOS TRUST
TERENCE J. GOODING 1994 TRUST
BARBARA A. GOODING 1994 TRUST
IVERNA REDMOND
MAUREEN WISCHHUSEN
MARGARET GOODING
MARY J. OLSON
YVONNE DUGGER
DARREL WEBLEY
DUANE WEBLEY
23
DEBORAH SPARKS
SNOW HILL TRUSTEES
RICHARD J. BERRY
GERALDINE MARY BERRY
PAUL STEVENSON
SUSAN EVE STEVENSON
PHILIP J. COOKE
By: /s/ Terence J. Gooding
------------------------------------------
Terence J. Gooding as Attorney-in-Fact
BEN J. CONSTANTINI
By: /s/ Ben J. Constantini
---------------------------------
Ben J. Constantini
DEREK T. MORIKAWA
By: /s/ Derek T. Morikawa
---------------------------------
Derek T. Morikawa
MEGAN MORIKAWA INTER VIVOS TRUST
EVAN MORIKAWA INTER VIVOS TRUST
By: /s/ Derek T. Morikawa
----------------------------------
Derek T. Morikawa, as Attorney-in-Fact
ROD BALLARD
KEITH BARGROFF
RICHARD BERRY
PAT BONFILS
JOSEPH A. BUDANO
VICKIE L. CAPPS
CHARLES CITRON
BEN J. CONSTANTINI
DANIEL FISH
24
BRUCE GOULD
MICHAEL HUFF
RICHARD JAWORSKI
RONALD JENT
BARRY KITAEN
MICHAEL LATHAM
ANN LITTLE
JOSEPH MATIBAG
NORMAN MILLER
DEREK T. MORIKAWA
ERNEY NIKOU
JEFFREY PERRIN
MICHAEL RICHARDSON
MICHAEL SCIULLI
BRYAN WHATLEY
PAUL ASHTIANI
ANTHONY EDWARD BAYLY
DAVID COOPER
PAUL ROBERTS
RICHARD RODDIS
PAUL STEVENSON
DAVID WALKER
STEVEN MANNING
KOON ENG TAN
YONG CHANG YANG
ULRICH DIEHL
ROLF KAINDL
WINFRIED LENNE
PETER MASSAM
JOUKE RIJPSTRA
KLAUS ROMANEK
SOREN SCHNAPKA
DIETER SCHWEISTHAL
NORBERT STADHOUDERS
WIELAND WEIGLER
MICHEL BOUQUAIN
ENZO DI LUIGI
OLIVER MASSELIN
FRANCOIS PLAZANET
FREDERICK TROJANI
LUKA RADOMIROV
By: /s/ Terence J. Gooding
-------------------------------------------
Terence J. Gooding, as Attorney-in-Fact
25