Exhibit 10.2
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
DATED AS OF JUNE 13, 2000
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
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TABLE OF CONTENTS
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Page
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ARTICLE I - DEFINITIONS.............................................. 1
ARTICLE II - COVENANTS AND CONDITIONS................................ 8
Section 2.1 Restrictions on Transfers; Right of First Refusal....... 8
Section 2.2 Call by the Company..................................... 11
Section 2.3 Put Right............................................... 13
Section 2.4 Take Along.............................................. 14
Section 2.5 Come Along.............................................. 15
Section 2.6 Corporate Governance.................................... 16
Section 2.7 Preemptive Rights....................................... 17
Section 2.8 Confidentiality......................................... 18
Section 2.9 Redemption of Class C Interests at Option of Holders (.. 19
Section 2.10 Conversion............................................. 21
Section 2.11 Registration Rights.................................... 21
ARTICLE III - MISCELLANEOUS.......................................... 32
Section 3.1 Remedies................................................ 32
Section 3.2 Entire Agreement; Amendment; Waiver..................... 33
Section 3.3 Severability............................................ 33
Section 3.4 Notices................................................. 33
Section 3.5 Binding Effect; Assignment.............................. 34
Section 3.6 Governing Law........................................... 34
Section 3.7 Termination............................................. 34
Section 3.8 Recapitalizations, Exchanges, Etc....................... 34
Section 3.9 Action Necessary to Effectuate the Agreement............ 35
Section 3.10 Purchase for Investment; Legend on Certificate......... 35
Section 3.11 Effectiveness of Transfers............................. 36
Section 3.12 Other Members.......................................... 36
Section 3.13 No Waiver.............................................. 36
Section 3.14 Counterpart............................................ 36
Section 3.15 Headings............................................... 36
Section 3.16 Gender................................................. 36
Section 3.17 Consent of Jurisdiction................................ 37
Section 3.18 Costs and Expenses..................................... 37
EXHIBIT A............................................................ 2
CLASS A MEMBERS..................................................... 2
CLASS B MEMBERS..................................................... 4
CLASS C MEMBERS..................................................... 5
CLASS D MEMBERS..................................................... 6
CLASS E MEMBERS..................................................... 7
PIK PREFERRED MEMBER................................................ 8
EXHIBIT A Schedule of Members
EXHIBIT B Put Note
ii
AMENDED AND RESTATED MEMBERS' AGREEMENT
This Amended and Restated Members' Agreement (this "Agreement") is entered
into as of the 13th day of June, 2000, by and among Weigh-Tronix, LLC, a
Delaware limited liability Company (the "Company"), those persons listed as
Berkshire Members on the signature pages hereof (collectively, the "Berkshire
Members"), those persons listed on the signature page hereof as "Other
Investors" (the "Other Investors" and, together with the Berkshire Members, the
"Investors"), The Northwestern Mutual Life Insurance Company ("Northwestern"),
and those persons listed as the Management Members on the signature pages hereof
(the "Management Members") and Marconi Inc. ("Marconi"). The Berkshire Members,
the Other Investors, Northwestern and the Management Members and Marconi are
sometimes collectively referred to herein as the "Members." The membership
interests of the Company, including the Class A Interests, Class B Interests,
Class C Interests, Class D Interests, Class E Interests and PIK Preferred
Interests held by the Members, are collectively referred to herein as
"Interests."
WHEREAS, each of the Members desires to enter into this Agreement for the
purpose of regulating certain aspects of the Members' relationships with regard
to the Company and certain restrictions on the Interests owned by the Members;
and
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
Definitions
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For the purposes of this Agreement, the following terms shall be defined as
follows:
An "Affiliate" of a Person shall mean a Person which, directly or
indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person and, when used with respect to the
Company shall include any holder of Interests or other equity interests of the
Company or any officer or director of the Company.
"Assignment Notice" shall have the meaning as set forth in Section 2.1(c).
"Associate" (i) when used to indicate a relationship with any Person shall
mean, (a) any corporation or organization of which such Person is an officer or
partner or is, directly or indirectly, the beneficial owner of ten percent (10%)
or more of any class of equity securities, (b) any trust or other estate in
which such Person has a substantial beneficial interest or as to which such
Person serves as a trustee or in a similar fiduciary capacity and (c) any
relative of such Person who has the same home as such Person, is a parent, aunt
or uncle, sibling, spouse, in-law, child, niece or nephew or grandchild of such
Person, or the spouse of any of them, or (ii) when used to indicate a
relationship with the Company, shall also mean a director or officer of the
Company or any Subsidiary. Neither the Company nor any of its Subsidiaries
shall be deemed an Associate of any Member.
"Berkshire Representatives" shall have the meaning as set forth in Section
2.6.
"Berkshire Member" shall have the meaning as set forth in the first
paragraph of this Agreement.
"Board" or "Board of Managers" shall mean the Board of Managers of the
Company as the same shall be constituted from time to time.
"Call Event" shall have the meaning as set forth in Section 2.2(a).
"Call Group" shall have the meaning as set forth in Section 2.2(a).
"Call Notice" shall have the meaning as set forth in Section 2.2(a).
"Call Option" shall have the meaning as set forth in Section 2.2(a).
"Call Price" shall have the meaning as set forth in Section 2.2(c).
"Call Securities" shall have the meaning as set forth in Section 2.2(b).
"Capital Contribution" shall have the meaning as set forth in the Operating
Agreement.
"Cause" shall have the meaning as set forth below, except with respect to
any Management Member who is employed by the Company or one of its Subsidiaries
pursuant to an effective written employment agreement between the Company and/or
one of its Subsidiaries and such Management Member, in which event the
definition of "Cause" as set forth in such employment agreement shall be deemed
to be the definition of "Cause" herein solely for such Management Member and
only for so long as such employment agreement remains effective.
In all other events, the term "Cause" shall mean that the Board of Managers
of the Company has determined, in its reasonable judgment, that any one or more
of the following has occurred:
(i) the Management Member shall have been convicted of, or shall have
pleaded guilty or nolo contendere to, any felony or any crime involving
dishonesty or moral turpitude;
(ii) the Management Member shall have committed any fraud,
embezzlement, misappropriation of funds, breach of fiduciary duty or act of
dishonesty;
(iii) the Management Member shall have failed to perform his duties
and responsibilities to the Company and its Affiliates (other than by
reason of disability);
(iv) the Management Member shall have breached in any respect any of
the provisions of this Agreement or any other agreement between the
Management Member and the Company;
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(v) the Management Member shall have engaged in conduct likely to make
the Company or any of its Affiliates subject to civil or criminal
liabilities other than those arising from the Company's normal business
activities; or
(vi) a failure by the Management Member to take, or refrain from
taking, any action as directed by of the Board of Managers of the Company.
"Change of Control" shall mean any transaction in which (i) any Person, or
any two or more Persons acting as a group, and all Affiliates of such Person or
Persons, in each case other than Persons who are Members on the date of this
Agreement or who are Affiliates of such Members, acquire, whether by purchase,
exchange, tender offer, merger, consolidation or otherwise, such additional
Interests of the Company in one or more transactions, or series of transactions,
such that following such transaction or transactions, the aggregate Percentage
Interests in the Company of such Person or group and their Affiliates exceeds
fifty percent (50%) or (ii) all or substantially all of the assets of the
Company are sold, other than in the ordinary course of business.
"Closing" shall have the meaning set forth in Section 2.1(e).
"Class A Interests" shall mean the Class A Interests of the Company, as
defined in the Company's Operating Agreement of even date herewith, including
any Class A Interests issued upon exercise of the Warrant.
"Class B Interests" shall mean the Class B Interests of the Company, as
defined in the Company's Operating Agreement of even date herewith.
"Class C Interests" shall mean the Class C Interests of the Company, as
defined in the Company's Operating Agreement of even date herewith.
"Class D Interests" shall mean the Class D Interests of the Company, as
defined in the Company's Operating Agreement of even date herewith.
"Class E Interests" shall mean the Class E Interests of the Company, as
defined in the Company's Operating Agreement of even date herewith.
"Company" shall mean Weigh-Tronix, LLC, a Delaware limited liability
company, and its successors and assigns.
"Designated Employee" or "Designated Employees" shall have the meaning as
set forth in Section 2.2(e).
"Determination Date" shall mean the earliest date on which (i) the Company
or any of its Subsidiaries shall have consummated a Public Offering (ii) the
Company shall have consummated the sale of all or substantially all of its
Interests, or (iii) the Company and its Subsidiaries shall have consummated the
sale of all or substantially all of their assets or businesses.
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"Disability" shall mean permanent disability within the meaning of Section
22(e)(3) of the Internal Revenue Code of 1986, as amended, unless otherwise
defined in a separate written employment agreement between the Company and/or
one of its Subsidiaries and the person whose disability is in question.
"Fair Market Value" shall mean, the fair value per share of the applicable
Interests as of the applicable date on the basis of a sale of such Interests in
an arms length private sale between a willing buyer and a willing seller,
neither acting under compulsion. In determining such Fair Market Value, no
discount shall be taken for constituting a minority interest or for illiquidity
and no upward adjustment or discount shall be taken relating to the fact that
the Interests in question are subject to the restrictions and entitled to the
rights provided hereunder. In the case of a purchase of an interest from one
who first becomes a Management Member after the date of this Agreement, such
Fair Market Value shall be determined in good faith by the Board of Managers of
the Company, which determination shall be final and binding on all parties. In
all other instances, such Fair Market Value shall be determined in good faith by
the Board of Managers of the Company and a representative of the Member or
Members whose Interests are being valued (who shall be a person selected by
holders of a majority in interest of the applicable Interests and who shall be
hereinafter referred to as the "Representative"). If no such agreement is
reached within thirty (30) days after the applicable date, then the fair market
value shall be determined by appraisal. All appraisals shall be undertaken by
two appraisers, one selected by the Board of Managers of the Company and one
selected by the Representative. No Manager whose Interests are being appraised
or who is affiliated with a person whose Interests are being appraised shall
vote on the selection of the appraiser chosen by the Company. The fair market
value shall be the fair market value arrived at by those appraisers within
thirty (30) days following the appointment of the last appraiser to be
appointed. In the event that the two appraisers agree in good faith on such
fair market value within such a period of time, such agreed value shall be used
for purposes of this Agreement. If the appraisers cannot agree but their
valuations are within ten percent (10%) of each other, then the fair market
value shall be the mean of the two valuations. If the appraisers cannot agree
and the difference in the valuations is greater than ten percent (10%), then the
appraisers shall select a third appraiser who will calculate fair market value
independently, and, except as provided in the next sentence, the fair market
value of the Interests shall be the average of the two fair market values
arrived at by the appraisers who are closest in amount. If one appraiser's
valuation is the mean of the other two valuations, such mean valuation shall be
the fair market value. In the event that the two original appraisers cannot
agree upon a third appraiser within ten (10) days following the end of the
thirty (30) day period referred to above, then the third appraiser shall be
appointed by the American Arbitration Association in Boston, Massachusetts.
"Good Reason" shall have the meaning as set forth below except with respect
to any Management Member who is employed by the Company or one of its
Subsidiaries pursuant to an effective written employment agreement between the
Company and/or one of its Subsidiaries and such Management Member, in which
event the definition of "Good Reason" as set forth in such employment agreement
shall be deemed to be the definition of "Good Reason" herein solely for such
Management Member and only for so long as such employment agreement remains
effective.
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In all other events, the term "Good Reason" shall mean (i) a change of more
than forty (40) miles in the location of the Company's offices where the
employee is located or (ii) a material change in the nature or scope of the
employee's authorities, status, powers, functions, duties, responsibilities, or
reporting relationships that is determined by the employee in good faith to be
adverse to those existing before such change;
"Indenture" means the indenture dated June 13, 2000, made by SWT Finance,
B.V., and certain other parties in relation to the EURO 100 Million Senior
Subordinated Notes 2010, together with supplemental indentures.
"Interests" shall mean all (i) Class A, Class B, Class C, Class D, Class E
and PIK Preferred Interests held by Members from time to time, including, but
not limited to, any Interests issued upon exercise of the Warrant; (ii) the
Warrant; and (iii) securities of the Company or any successor issued in exchange
for, upon reclassification of, or as a distribution in respect of, any of the
foregoing.
"Investment Price" shall mean an amount per Interest equal to the price, if
any, per Interest paid for such Interest at the time of initial purchase thereof
(subject to appropriate adjustments for splits, recapitalizations and the like).
"Involuntary Transfer" shall have the meaning as set forth in Section
2.1(i).
"Liquidity Event" shall mean a Public Offering, the sale of all or
substantially all of the assets of the Company, or a transaction which results
in a Change of Control.
"Management Representatives" shall have the meaning as set forth in Section
2.6.
"Management Member" shall mean initially those Persons who are shown as
Management Members on the signature page hereof, and thereafter shall include
such Persons who are added to the Company as Management Members.
"Management Interests" shall mean all Class A Interests, Class B Interests,
Class D Interests and Class E Interests held by the Management Members.
"Marconi" shall mean the holder, for the time being, of the PIK Preferred
Interest.
"Member" shall have the meaning as set forth in the first paragraph of this
Agreement.
"New Securities" shall have the meaning as set forth in Section 2.7(b).
"Offer Price" shall have the meaning as set forth in Section 2.1(a).
"Offered Interests" shall have the meaning as set forth in Section 2.1(a)
"Offered Interests Electing Members" shall have the meaning as set forth in
Section 2.1(c).
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"Operating Agreement" shall mean the Second Amended and Restated Operating
Agreement of the Company as in effect from time to time.
"Option Period" shall have the meaning as set forth in Section 2.1(b).
"Percentage Interest" shall have the meaning set forth in the Operating
Agreement.
"Permitted Transfer" shall mean:
(a) a Transfer of Interests by any Member who is a natural person to
(A) such Member's spouse, children, grandchildren, parents or siblings, (B)
a trust for the benefit of any of them or (C) a limited partnership or
limited liability company whose sole partners or members, as the case may
be, are any of the persons described in clause (A) or clause (B);
(b) a Transfer of Interests by a Member upon death to such Member's
legal representatives, heirs or legatees, provided that such Member
immediately prior to death was not an employee of the Company so that such
Member's Interests are subject to the provisions of Section 2.2 of this
Agreement;
(c) a Transfer of Interests by (i) the initial Berkshire Members to
any Affiliate of Berkshire Partners LLC or any of the employees, partners,
members or affiliates of any such Affiliate or (ii) between any Berkshire
Members;
(d) a Transfer of Interests (including the PIK Preferred Interests)
from any Member which is a corporation, limited liability company or
partnership to any Affiliate of such Member;
(e) a Transfer by Northwestern to a Qualified Institutional Investor
or to any corporation or partnership (or other entity for collective
investment, such as a fund) controlled by, controlling or under common
control with Northwestern;
(f) a Transfer by Northwestern or BancBoston Investments Inc., or any
of their respective Permitted Transferees, to a Berkshire Member or to an
Affiliate of a Berkshire Member, or
(g) a Transfer by the PIK Preferred Member to any other Person,
provided that such Transfer occurs after a first anniversary of the
Effective Date (as defined by the Operating Agreement) and that the Company
has given its approval to such Transfer (such approval not to be
unreasonably withheld or delayed).
No Permitted Transfer shall be effective unless and until the transferee of
the Interests so transferred, if such transferee is not already a party to
this Agreement, executes and delivers to the Company an executed
counterpart of this Agreement in accordance with the terms of Section 3.12
hereof. No Permitted Transfer shall conflict with or result in any
violation of a judgment, order, decree, statute, law, ordinance, rule or
regulation. For purposes of this definition, a Member shall be deemed to
include any holder of Warrants.
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"Permitted Transferee" shall mean any person or entity who shall have
acquired and who shall hold shares pursuant to a Permitted Transfer described
above.
"Person" shall mean an individual, corporation, partnership, trust, or
unincorporated association, or a government or any agency or political
subdivision thereof.
"PIK Preferred Interests" shall mean the PIK Preferred Interest of the
Company, as defined in the Company's Operating Agreement of even date herewith.
"Pro Rata Fraction" shall mean, with respect to any given Member, the
Percentage of Interest of such Member.
"Public Offering" shall mean the first issuance of securities issued by the
Company or any successor entity (including a corporation into which the Company
is converted) pursuant to a public distribution in which all or any portion of
the Interests of the Company, or any security of a successor entity into which
such Interests may be converted, shall be listed and traded on a national
exchange or on the NASDAQ National Market System.
"Qualified Institutional Investor" shall mean any of the following Persons:
(a) any bank, savings and loan association, savings institution, trust company
or national banking association, acting for its own account or in a fiduciary
capacity, (b) any charitable foundation, (c) any insurance company, (d) any
fraternal benefit society, (e) any pension, retirement or profit-sharing trust
or fund within the meaning of Title I of ERISA or for which any bank, trust
company, national banking association or investment adviser registered under the
Investment Advisers Act of 1940, as amended, is acting as trustee or agent, (f)
any investment company or business development company, as defined in the
Investment Company Act of 1940, as amended, (g) any small business investment
company licensed under the Small Business Investment Act of 1958, as amended,
(h) any broker or dealer registered under the Securities Exchange Act of 1934,
as amended, or any investment adviser registered under the Securities Exchange
Act of 1934, as amended, or any investment adviser registered under the
Investment Advisers Act of 1940, as amended, (i) any government, any public
employees' pension or retirement system, or any other government agency
supervising the investment of public funds, (j) any other entity all of the
equity owners of which are Institutional Holders or (k) any other Person which
may be within the definition of "qualified institutional buyer" as such term is
used in Rule 144A.
"Schedule" shall refer to the Schedule of Members attached hereto as
Exhibit A.
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"Seller" shall have the meaning as set forth in Section 2.4(a).
"Senior Subordinated Notes" shall mean the EURO 100 Million Senior
Subordinated Notes 2010 of SWT Finance, B.V.
"Subsidiary" with respect to any entity (the "parent") shall mean any
corporation, firm, association or trust of which such parent, at the time in
respect of which such term is used, (i) owns directly or indirectly more than
fifty percent (50%) of the equity or beneficial interest, on a consolidated
basis, and (ii) owns directly or controls with power to vote, indirectly through
one or more Subsidiaries, shares of capital stock or beneficial interest having
the power to cast for
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the election of directors, trustees, managers or other officials having powers
analogous to that of directors of a corporation. Unless otherwise specifically
indicated, when used herein the term Subsidiary shall refer to a direct or
indirect Subsidiary of the Company.
"Take Along Group" shall have the meaning as set forth in Section 2.4(a).
"Third Party" shall mean any person other than the Company.
"Transfer" shall mean to transfer, sell, assign, pledge, hypothecate, give,
create a security interest in or lien on, place in trust (voting or otherwise),
assign or in any other way encumber or dispose of, directly or indirectly and
whether or not by operation of law or for value, any Interests.
"Transfer Notice" shall have the meaning as set forth in Section 2.1(a).
"Transferring Member" shall have the meaning as set forth in Section
2.1(g).
"Voluntary Termination" shall include a voluntary termination of employment
with the Company by a Management Member in the absence of a Good Reason, except
as otherwise specified in an effective written agreement between the Company
and/or one of its Subsidiaries and such Management Member. The term Voluntary
Termination shall not include termination of employment due to death or
permanent disability.
"Warrant" means the warrants to purchase a Class A Membership Interest in
the Company issued to Marconi Inc. pursuant to a Warrant Agreement dated June
13, 2000, and attached hereto as Exhibit 1.
ARTICLE II
Covenants and Conditions
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2.1 Restrictions on Transfers; Right of First Refusal. No Member may
Transfer all or any part of the Interests owned by him to anyone other than a
Permitted Transferee except in accordance with the following procedures:
(a) If at any time a Member desires to Transfer Interests to anyone
other than a Permitted Transferee (each, an "Offeror"), such Offeror shall give
notice of such offer (the "Transfer Notice") to the Company. The Transfer
Notice shall state the terms and conditions of such offer, including the name of
the prospective purchaser, the proposed purchase price per share of such
Interests (the "Offer Price"), payment terms (including a description of any
proposed non-cash consideration), the type of disposition and the number of such
Interests to be transferred ("Offered Interests"). The Transfer Notice shall
further state (i) that the Company may acquire, in accordance with the
provisions of this Agreement, any of the Offered Interests for the price and
upon the other terms and conditions, including deferred payment (if applicable),
set forth therein, and (ii) that the Company may not purchase any of such
Offered Interests unless the Company purchases all of such Offered Interests.
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(b) For a period of thirty (30) business days after receipt of the
Transfer Notice (the "Option Period"), the Company may, by notice in writing to
the Offeror delivering such Transfer Notice, elect in writing to purchase all,
but not less than all, of the Offered Interests at the Offer Price. The closing
of the purchase of Offered Interests pursuant to Section 2.1(b) or Section
2.1(c), as the case may be, shall take place at the principal office of the
Company on the tenth (10th) day after the expiration of the Option Period. At
such Closing, the Company shall deliver to the Offeror against delivery of
certificates duly endorsed and stock powers representing the Offered Interests
being acquired by the Company, the Offer Price, on the same terms as set forth
in the Transfer Notice (including any non-cash consideration described therein),
payable in respect of the Offered Interests being purchased by the Company. All
of the foregoing deliveries will be deemed to be made simultaneously and none
shall be deemed completed until all have been completed.
(c) Notwithstanding anything set forth in this Section 2.1 to the
contrary, prior to the termination of the Option Period, the Board of Managers
may, in its sole discretion, elect to assign the Company's right to purchase the
Offered Interests pursuant to this Section 2.1 to the Members, provided that the
Company and any of the Members to whom the Company assigns its right to purchase
shall collectively purchase all, but not less than all, of the Offered
Interests. If the Board so elects, the Company shall give notice of such
assignment to each Member (the "Assignment Notice"), indicating the number of
Interests each such Member is entitled to purchase (including the right to over-
allotment of Offered Interests, if any), the Offer Price of such Interests, and
any other relevant payment terms. Within five (5) days of the Assignment
Notice, those Members who intend to purchase the Offered Interests pursuant to
this Section 2.1(c) (the "Offered Interests Electing Members") shall notify the
Company in writing of such intention, indicating the number of Offered Interests
(including over-allotments, if any) they intend to purchase. The right to
purchase such Offered Interests shall be allocated to the Members based upon
each Member's Pro Rata Fraction; provided, however, that if any Member does not
elect to purchase the number of Offered Interests which such Member may purchase
pursuant to this Section 2.1(c), then the Offered Interests Electing Members may
elect to purchase the remaining Offered Interests. The right to purchase the
remaining Offered Interests shall be allocated to the Offered Interests Electing
Members based on each such Offered Interests Electing Member's Pro Rata Fraction
of all Offered Interests Electing Members.
(d) If the Company or the Members, as the case may be, do not elect to
purchase all of the Offered Interests, all, but not less than all, of the
Offered Interests may be Transferred, but only in accordance with Sections
2.1(e) and 2.1(f) and the terms of the Transfer Notice, within sixty (60) days
after expiration of the Option Period, after which, if the Offered Interests
have not been Transferred, all restrictions contained herein shall again be in
full force and effect.
(e) Five (5) days prior to the closing of the purchase of any Offered
Interests pursuant to Section 2.1(d) hereof (the "Closing"), the Offeror shall
notify the Company of the disposition of the Offered Interests, including the
name of each purchaser and the number of shares bought by each purchaser. The
Closing shall take place no later than sixty (60) days after the expiration of
the Option Period. At such Closing, each purchaser of Offered Interests shall
deliver to the Offeror against delivery of certificates duly endorsed and stock
powers representing the Offered Interests being acquired by such purchaser, the
Offer Price, on the same
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terms as set forth in the Transfer Notice (including any non-cash consideration
described therein), payable in respect of the Offered Interests being purchased
by such purchaser. All of the foregoing deliveries will be deemed to be made
simultaneously and none shall be deemed completed until all have been completed.
(f) Any Transfer of Interests pursuant to this Section 2.1 shall
remain subject to the Transfer restrictions of this Agreement and each intended
transferee pursuant to this Section shall execute and deliver to the Company a
counterpart of this Agreement, which shall evidence such transferee's agreement
that the Interests intended to be transferred shall continue to be subject to
this Agreement and that as to such Interests the transferee shall be bound by
the restrictions of this Agreement as a Member hereunder.
(g) Any Member who is the subject of an Involuntary Transfer (as
defined below) (the "Transferring Member"), shall notify the Company in writing
within ten (10) days of such Involuntary Transfer but the failure to give such
notice shall not affect the rights of the parties hereunder. Upon the Company's
receipt of such notice, the Company shall treat the Involuntary Transfer as an
offer under this Section 2.1. The Company shall act upon the deemed offer under
this Section within the time periods and following the applicable procedures set
forth in this Section 2.1, with the date of the deemed offer being the later of
the date of the Company's receipt of written notice setting forth the existence
of such an Involuntary Transfer and the date of such Involuntary Transfer, such
later date being the date of notification for the purpose of Section 2.1.
(h) The purchase price for the Interests being transferred as a result
of an Involuntary Transfer under Section 2.1(g) shall be the fair market value,
as fair market value is agreed to by the Company and the transferee in each such
Involuntary Transfer, or if no such agreement is reached, as determined by an
independent appraiser selected by the Company and reasonably acceptable to the
transferee in such Involuntary Transfer. All costs of any appraisal under this
Section 2.1(h) shall be paid by the transferee.
(i) For purposes of this Agreement, the term "Involuntary Transfer"
shall mean any involuntary sale, transfer, encumbrance or other disposition
(other than as a result of the death of the Member) by or in which any Member
shall be deprived or divested of any right, title or interest in or to any
Interests, including without limitation, any levy of execution, transfer in
connection with bankruptcy, reorganization, insolvency or similar proceedings or
any transfer to a public officer or agency pursuant to any abandoned property or
escheat law. A Transfer pursuant to Section 2.2 hereof shall not be deemed to
be an Involuntary Transfer.
(j) The provisions of this Section 2.1 shall not apply to a Transfer
of Interests which (i) is a Permitted Transfer, (ii) is pursuant to Section 2.2,
(iii) is pursuant to Section 2.3, or (iv) is pursuant to Section 2.4, or, (v)
with respect to the Warrant, is permitted by the Warrant Agreement.
(k) Notwithstanding the foregoing, in no event may a Member Transfer
any Class D or Class E Interest which remains subject to becoming Conformed
Units under the terms of the Operating Agreement, except to a Permitted
Transferee, in which case such transferred
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Interests shall remain subject to becoming Conformed Units in the hands of such
Permitted Transferee.
2.2 Call by the Company.
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(a) If the employment of a Management Member by the Company or any of
its Subsidiaries shall terminate (a "Call Event") for any reason, then the
Company shall have the right to purchase (the "Call Option"), by delivery of a
written notice (the "Call Notice") to such terminated Management Member no later
than ninety (90) days after the date of such Call Event, and such Management
Member and such Management Member's Permitted Transferees (the "Call Group")
shall be required to sell all (but not less than all) of the Call Securities (as
defined below) at a price per share equal to the Call Price (as defined below)
of such Call Securities as of the date the Call Notice is delivered.
(b) For purposes of this Section 2.2, the term "Call Securities" shall
mean all of the Class A Interests, Class B Interests, Class D Interests and
Class E Interests which are owned by the members of the Call Group on the date
of such Call Event. In the case of the Class D and Class E Interests, this call
right shall apply only to such Interests which are no longer subject to being
converted into a "Conformed Interest" under the Operating Agreement.
(c) For purposes of this Section 2.2, the term "Call Price" shall mean
(i) with respect to Class A Interests,
(A) in the event of a termination of a Management Member's
employment (i) by the Company without Cause, (ii) by the Executive for
Good Reason or (iii) by virtue of the Executive's death or Disability,
the greater of (x) the Investment Price of such Interests and (y) the
Fair Market Value of such Interests; and
(B) in the event of a termination of a Management Member's
employment (i) by the Company for Cause or (ii) by the Executive's
Voluntary Termination, the lower of (x) the Investment Price of such
Interests and (y) the Fair Market Value of such Interests.
(ii) with respect to Class B, Class D and Class E Interests,
(A) in the event of a termination of a Management Member's
employment (i) for Cause or (ii) by the Executive's Voluntary
Termination (other than due to death, Disability or normal
retirement), no consideration; and
(B) in the event of a termination of a Management Member's
employment for any reason other than as set forth in Section
2.2(c)(ii)(A) above, the Fair Market Value of such Interests.
(d) The closing of any purchase of Call Securities by the Company
pursuant to Section 2.2(a) shall take place at the principal office of the
Company no later than the one hundred eightieth (180th) day after the Call
Event. At such closing, the Company shall deliver to
11
the Call Group consideration in an amount equal to the aggregate Call Price
payable in respect of such Call Securities against delivery of original
certificates representing Interests (if such interests are certificated) and
transfer documents duly endorsed in favor of the Company representing the Call
Securities. The Company, at its option, may pay the consideration for such Call
Securities in the form of a bank or certified check or wire transfer. If the
Call Event is due to the termination of the Management Member's Employment for
Cause and the Company is unable to exercise its Call Option by payment of the
Call Price in cash because such payment would cause the Company or any
Subsidiary to be in violation of applicable law or in default under or otherwise
in violation of the terms of, or limited by the ceiling in the availability or
credit advances under, any loan, credit or investment agreements or promissory
notes to which the Company or any Subsidiary is a party (a "Default"), the
Company may exercise such Call Option, at its sole election, and pay the Call
Price by delivery of a five (5) year promissory note issued by the Company,
bearing interest at a fixed rate of interest per annum equal to the applicable
federal rate on the date of issuance for notes of that maturity, such interest
to be payable quarterly in arrears, which note shall be prepayable without
premium or penalty, and subordinated to all other funded debt of the Company and
its Subsidiaries on terms reasonably satisfactory to the holders of such funded
debt (each a "Company Note," and collectively, the "Company Notes"). If the
Company shall issue a Company Note as payment of the Call Price, the Company
shall not be obligated to make any payment of principal or interest due under a
Company Note if the Company or any Subsidiary is at the time of the delivery of
such payment, or would be upon delivery of such payment and as a consequence
thereof, in Default. In the event the Company cannot make payments of principal
and interest due under a Company Note because it is in Default, the Company will
undertake to make payment of principal and interest due under such Company Note
at such time as the Company is no longer in Default and would not be so in
Default by virtue of the delivery of such Company Note or any payment of
principal and interest due under such Company Note as contemplated herein.
(e) Notwithstanding anything set forth in this Section 2.2 to the
contrary, prior to the exercise by the Company of its Call Option to purchase
Call Securities pursuant to this Section 2.2, the Board of Managers of the
Company may designate one or more new or existing employees of the Company or
any Subsidiary (individually a "Designated Employee" and collectively, the
"Designated Employees") or another Member who shall have the right, but not the
obligation, to exercise the Call Option and to acquire, in lieu of the Company,
some or all (as determined by the Company) of the Call Securities that the
Company is entitled to purchase from the Call Group hereunder, on the same terms
and conditions as set forth in Section 2.2(d) which apply to the purchase of
Call Securities by the Company. Concurrently with any such purchase of Call
Securities by any such Designated Employee, such Designated Employee shall
execute a counterpart of this Agreement, whereupon such Designated Employee
shall be deemed a "Management Member" and shall have the same rights and be
bound by the same obligations as the other Management Members hereunder.
(f) If neither the Company nor any Designated Employee or other Member
elects to exercise the Call Option and deliver a Call Notice within 90 days of a
Call Event, then the Call Option provided in this Section 2.2 shall terminate
but the Management Member and his Permitted Transferees shall continue to hold
such Call Securities pursuant to all of the other provisions of this Agreement
and other applicable agreements (including without limitation, any provisions
relating to termination of Class D and Class E Interests).
12
(g) Notwithstanding the provisions of Sections 2.2 and 2.3, the
Company shall not have a Call Option with respect to Interests of a Management
Member, nor shall a Management Member have a put right with respect to Interests
if either (i) the Subsidiary or division of the Company for which such
Management Member works is sold to an unaffiliated third party, such Management
Member offers to become an employee of the buyer for at least one year following
such sale at a compensation level and with responsibilities substantially
equivalent to those in place immediately before such sale, and the buyer
declines such offer of employment, or (ii) there is an internal reorganization
or restructuring of the Company and its Subsidiaries pursuant to which such
Management Member's position is eliminated or materially changed, such
Management Member offers to continue in the employ of the Company at a
compensation level comparable to that in place immediately prior to such
reorganization or restructuring, and to assume responsibilities appropriate for
his experience and abilities, and the Company declines such offer of employment.
(h) The Company shall have the right to redeem the PIK Preferred
Interest at any time for an amount equal to the Capital Contribution
attributable to said PIK Preferred Interest plus any and all accumulated and
unpaid guaranteed payments associated with said PIK Preferred Interest. Payment
shall be made in cash (denominated in EUROS) on the date of redemption.
2.3 Put Right. Notwithstanding the provisions of Section 2.2 (other than
---------
subparagraph (g) thereof) hereof:
(a) If the employment of a Management Member by the Company or any of
its Subsidiaries is terminated by the Company without Cause or by such
Management Member for Good Reason, the Management Member shall have the right to
require the Company to purchase (the "Put Right") all but not less than all of
the Class A Interests owned by such Management Member (and his Permitted
Transferees) at the Investment Price for such Class A Interests. The Put Right
shall be exercised by the Management Member by delivery of a written notice (the
"Put Notice") to the Company no later than one hundred (100) days after
termination of employment.
(b) The closing of any purchase of Class A Interests by the Company
pursuant to Section 2.3(a) shall take place at the principal office of the
Company no later than the 180th day after termination of employment. At such
closing, the Company shall deliver to the Management Member consideration in an
amount equal to the aggregate purchase price payable in respect of such Class A
Interests subject to the Put Right against delivery of original certificates
representing Interests and transfer documents duly endorsed in favor of the
Company representing the Class A Interests purchased at such closing. The
Company, at its option, may pay the consideration described in the preceding
sentence in the form of a bank or certified check or wire transfer.
(c) At any time after the first anniversary of the Effective Date as
defined in the Operating Agreement, Marconi shall have the right to require the
Company to redeem all or any portion of the PIK Preferred Interest then owned by
Marconi for an amount equal to the Capital Contribution attributable to Marconi
with respect to said PIK Preferred Interest, plus any accumulated but unpaid
guaranteed payments with respect to said PIK Preferred Interest, which
13
amount shall be payable to the issuer of the Senior Subordinated Notes due 2010
in consideration for the issuance to (or at the direction of) Marconi of such
further Senior Subordinated Notes of an aggregate face amount equal to the
amount payable to that issuer pursuant to this Section 2.3(d), provided however,
that said right may be exercised by Marconi only if (i) the Fixed Charge
Coverage Ratio (as defined under and calculated as described in the Indenture in
its form on the date hereof), for the Company's most recent four (4) fiscal
quarters of which internal financial statements are available immediately
preceding the relevant exchange date would have been at least 2.5 to 1.0
determined on a pro forma basis as if the Senior Subordinated Note to be issued
had been issued at the beginning of said four (4) quarter period; and (ii) no
Default or Event of Default has occurred and is continuing under (and as defined
in) the Indenture.
(d) On the occurrence of any Change of Control, as defined under the
Indenture in the form it is on the date hereof, Marconi shall have the right (by
giving two (2) days' written notice to the Company) to require the Company to
redeem all of the PIK Preferred Interest for an amount equal to the Capital
Contribution attributable to said PIK Preferred Interest, plus any accumulated
but unpaid guaranteed payments with respect to said PIK Preferred Interest,
payable to Marconi on the date specified in said notice in cash (denominated in
Euros).
(e) On the eleventh (11th) anniversary of the Effective Date (as
defined in the Operating Agreement) the Company shall redeem all of the PIK
Preferred Interest for an amount equal to the Capital Contribution attributable
to said PIK Preferred Interest plus any accumulated but unpaid guaranteed
payments with respect to said PIK Preferred Interest, payable to Marconi on that
anniversary in cash (denominated in Euros).
2.4 Take Along.
----------
(a) If any of the Members, individually or collectively owning more
than fifty percent (50%) of the then outstanding Interests measured by
Percentage Interest (referred to herein as the "Take-Along Group"), determine to
sell or exchange (in a business combination or otherwise) more than fifty
percent (50%) of the then outstanding Interests also so measured in one or a
series of bona fide arms-length transactions to a Third Party (the "Proposed
Transfer Percentage"), then upon fifteen (15) Business Days written notice by
the Take Along Group to each other Member, which notice shall include reasonable
details of the proposed sale or exchange including the proposed time and place
of closing and the consideration to be received by the Take Along Group (such
notice being referred to as the "Sale Request"), each other Member (other than
Marconi) (each, a "Seller") shall be obligated to, and shall sell, transfer and
deliver, or cause to be sold, transferred and delivered, to such Third Party on
the same terms as the Take Along Group, that number of Interests owned by such
Seller as shall equal the product of (A) a fraction, the numerator of which is
the Percentage Interests proposed to be transferred by the Take Along Group as
of the date of such Sale Request multiplied by the Proposed Transfer Percentage
and the denominator of which is the aggregate Percentage Interests actually
owned as of the date of such Sale Request by the Take Along Group, multiplied by
(B) the Percentage Interest actually owned as of the date of such Sale Request
by such Seller. Each Seller shall (i) deliver certificates (if any) for all of
its Interests at the closing of the proposed Transfer, free and clear of all
claims, liens and encumbrances and (ii) if Member approval of the
14
transaction is required, vote his Interests in favor thereof. The provisions of
this Section 2.4 shall not apply to a Permitted Transfer or to a Transfer
pursuant to Section 2.3.
(b) If a Sale Request shall be given which relates to the sale of
fewer than all Interests then outstanding, each of BancBoston Investments Inc.
and Northwestern may, by notice given to the Take-Along Group within seven (7)
Business Days after receipt of the Sale Request, elect to sell all of its
Interests in connection with the transaction which is the subject of the Sale
Request. In such event, the Interests to be sold by all other Members in such
transaction will be reduced proportionately.
2.5 Come Along.
----------
(a) Except as provided in Sections 2.5(d), 2.9, 2.10 and 2.11 hereof,
no Member shall Transfer outstanding Interests of the Company to a Third Party
who is not a Permitted Transferee without complying with the terms and
conditions set forth in Section 2.5(b) and 2.5(c) below; provided, however, that
this Section 2.5 shall not in any way limit or affect the restrictions of
Section 2.1 or the provisions of 2.5(j).
(b) Any Member, when desiring to Transfer Interests (the
"Transferor"), shall give not less than fifteen (15) days prior written notice
of such intended Transfer to each other Member and to the Company. Such notice
(the "Participation Notice") shall set forth the terms and conditions of such
proposed Transfer, including the name of the prospective transferee, the number
of Interests proposed to be transferred (the "Participation Securities") by the
Transferor, the purchase price per share proposed to be paid therefor and the
payment terms and type of transfer to be effectuated. Within ten (10) days
following the delivery of the Participation Notice by the Transferor to each
other Member and to the Company, each Member desiring to participate in such
proposed Transfer (each, a "Participating Offeree") shall, by notice in writing
to the Transferor and to the Company, have the opportunity and right to sell to
the purchasers in such proposed Transfer (upon the same terms and conditions as
the Transferor) up to that number of Interests owned by such Participating
Offeree as shall equal the product of (i) a fraction, the numerator of which is
the number of Interests owned by such Participating Offeree as of the date of
such proposed Transfer and the denominator of which is the number of Interests
actually owned as of the date of such Participation Notice by the Transferor and
by all Participating Offerees multiplied by (ii) the number of Participation
Securities. The amount of Participation Securities to be sold by the Transferor
shall be reduced to the extent necessary to provide for such sales of Interests
by Participating Offerees.
(c) At the closing of any proposed Transfer in respect of which a
Participation Notice has been delivered, the Transferor, together with all
Participating Offerees, shall deliver to the proposed transferee certificates
evidencing the Interests to be sold thereto duly endorsed with stock powers and
shall receive in exchange therefor the consideration to be paid or delivered by
the proposed transferee in respect of such Interests as described in the
Participation Notice.
(d) The provisions of this Section 2.5 shall not apply to (i) any
Permitted Transfer, (ii) any Transfer pursuant to Section 2.2, (iii) any
Transfer pursuant to Section 2.3, (iv)
15
any Transfer pursuant to Section 2.4, or (v) any Transfer by BancBoston
Investments Inc. or Northwestern of an Interest representing less than a 2%
Percentage Interest in the Company.
2.6 Corporate Governance.
--------------------
(a) Initial Board. At each annual meeting of the Members and at each
special meeting of the Members called for the purpose of electing Managers of
the Company, and at any time at which Members of the Company shall have the
right to, or shall, vote for Managers of the Company, then, and in each event,
the Members hereby agree to attend each meeting in person or by proxy and hereby
agree to vote the Interests now owned or hereafter acquired by him, her or it
(whether at a meeting or by written consent in lieu thereof) (i) so that the
Company's Board of Managers shall be designated as set forth herein, (ii) to fix
the number of members of the Board at six (6) and (iii) to elect and thereafter
to continue in office as a Manager of the Company the following: (i) two (2)
Managers shall be persons nominated by the Berkshire Members (who shall
initially be Bradley M. Bloom and Randy Peeler (collectively the "Berkshire
Representatives"); and (ii) four (4) Managers shall be persons nominated by the
Management Members (who shall initially be John J. McCann, Larry Gunning, Roger
W. Evans and David R. Castle) (collectively, the "Management Representatives").
A vacancy in either of the positions on the Board of Managers to be occupied by
a Berkshire Representative shall be filled only by vote or written consent of a
majority in interest of the Berkshire Members and a vacancy in any of the
positions on the Board of Managers to be held by the Management Representatives
shall be filled only by vote or written consent of Management Members holding at
least eighty percent (80%) in interest of the Interests held by all Management
Members.
(b) Independent Manager. The parties hereto agree that they will use
their best efforts to add within six (6) months after the date hereof an
additional Manager with relevant industry experience who shall not be an
Affiliate of any other Member.
(c) Board Expansion. The Berkshire Members may at any time require,
by written notice to the other Members (the "Increase Notice"), that the number
of Managers constituting the Board of Managers be increased by such number of
Managers designated by the Berkshire Members that after giving effect to the
addition of such Members a majority of the Members shall have been designated by
the Berkshire Members. Each Member agrees that such Member and its Permitted
Transferees shall take all action as may be necessary or appropriate, including
without limitation, the voting of all Interests owned by them, to so increase
the number of Managers constituting the Board of Managers and to elect the
additional Managers so designated by the Berkshire Members.
(d) Compensation Committee. There shall be established at all times
during the term of this Agreement, a Compensation Committee of the Board of
Managers of the Company (the "Compensation Committee") which shall be comprised
of three (3) Managers as follows: one Member shall be the President of the
Company, and the other two Members shall be Berkshire Representatives. The
Compensation Committee will determine the compensation of all senior employees
and consultants of the Company (including salary, bonus, equity participation
and benefits). The compensation of senior employees and consultants shall be
reviewed by the Compensation Committee at least annually, and the decision by a
majority of the members of the Compensation Committee will control the
Committee's actions.
16
(e) Audit Committee. There shall be established at all times during
the term of this Agreement, an Audit Committee of the Board of Managers of the
Company (the "Audit Committee") which shall be comprised of two Berkshire
Representatives. The Audit Committee will determine the Company's audit
policies, review audit reports and recommendations made by the Company's
internal audit staff and its independent auditors, meet with the Company's
independent auditors, oversee the independent auditors, and recommend the
Company's engagement of independent auditors.
(f) Board Meetings. The Boards of Managers of the Company shall meet
at least four times a year at a location mutually acceptable to the then members
of the Board of Managers. Additional meetings, either telephonically or in
person, may be called in accordance with the notice requirements set forth in
the Company's Operating Agreement.
(g) Indemnification. The Company will maintain indemnification for
officers and Managers substantially similar to that which exists as of the date
hereof.
(h) Observer Rights. As long as Northwestern owns any Class C
Interests, it shall have the right to receive notice of each meeting of the
Board of Managers of the Company, and any committee thereof, to have one of its
designees attend each such meeting as a non-voting observer (at the expense of
Northwestern), and to receive copies of all materials distributed to Managers at
any such meeting.
(i) PIK Preferred Interest Rights. In the event of a breach of the
covenants associated with the PIK Preferred Interest as provided in or given to
Marconi in this Agreement or Operating Agreement, the holders of the PIK
Preferred Interest shall have the right to elect one (1) Manager to the
Company's Board of Managers who shall serve until said breach has been cured.
The Board will be adjusted to allow for said additional Manager. A vacancy in
the position on the Board of Managers created pursuant to this Section 2.6(i)
shall be filled only by appointment made by Marconi.
2.7 Preemptive Rights.
-----------------
(a) Preemptive Right. The Company hereby grants to each Member so
long as it shall own any Interests, the right to purchase up to such Member's
Pro Rata Fraction of New Securities (as defined in paragraph (b) below) which
the Company, from time to time, proposes to sell or issue following the date
hereof.
(b) Definition of New Securities. "New Securities" shall mean any
Interests of the Company whether now authorized or not, any rights, options or
warrants to purchase Interests and any indebtedness or class of Interests of the
Company which is convertible into Interests (or which is convertible into a
security which is, in turn, convertible into Interests); provided that the term
"New Securities" does not include (i) indebtedness of the Company which is not
by its terms convertible into Interests; (ii) Interests issued as a distribution
to all Members pro rata or upon any subdivision or combination of Interests;
(iii) any employee options or similar equity rights approved by the Board of
Managers of the Company; (iv) Interests issued in exchange for the cancellation
or retirement of any debt securities of the Company or in connection with any
restructuring or other financial workout of the Company; (v) Interests issued
17
to selling Persons in connection with the acquisition of another corporation or
other entity by the Company or one of its Subsidiaries from such selling Person,
by merger, purchase of substantially all assets or other reorganization; (vi)
the issuance of any Interests upon the exercise or conversion of any rights,
options or warrants to purchase Interests; or (vii) not in excess of $500,000 of
Class A Interests issued to management or a Berkshire Member on or before July
29, 1998.
(c) Notice from the Company. In the event the Company proposes to
issue New Securities, the Company shall give each Member who has a preemptive
right under this Section 2.7 written notice of such proposal, describing the
type of New Securities and the price and the terms upon which the Company
proposes to issue the same. For a period of fifteen (15) days following the
delivery of such notice by the Company, the Company shall be deemed to have
irrevocably offered to sell to each Member its Pro Rata Fraction of such New
Securities for the price and upon the terms specified in the notice. Each
Member may exercise its preemptive rights hereunder by giving written notice to
the Company and stating therein the quantity of New Securities to be purchased.
(d) Sale by the Company. In the event any Member who has a preemptive
right under this Section 2.7 fails to exercise in full its preemptive right
within said fifteen (15) day period, the Company shall have one hundred twenty
(120) days thereafter to sell the New Securities with respect to which the
preemptive right was not exercised, at a price and upon terms no more favorable
to the purchasers thereof than specified in the Company's notice given pursuant
to Section 2.7(c).
(e) Closing. The Closing for any such issuance shall take place as
proposed by the Company with respect to the Interests to be issued, at which
Closing the Company shall deliver certificates for the shares in the respective
names of the purchasing Members against receipt of payment therefor.
2.8 Confidentiality.
---------------
Each Member agrees that it will keep confidential in accordance with its
internal policies and procedures in effect from time to time any written
information with respect to the Company which is furnished pursuant to this
Agreement and which is designated by the Company to it in writing as
confidential, provided that a Member may disclose any such information (i) as
has become generally available to the public (other than as a consequence of its
actions) or to such Member on a non-confidential basis from a source other than
the Company or as was known to such Member on a non-confidential basis prior to
its disclosure by the Company, (ii) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Member or, in
the case of Northwestern, to the National Association of Insurance Commissioners
or similar organizations or their successors, (iii) as may be required or
appropriate in response to any summons or subpoena or in connection with any
litigation, (iv) to the extent that such Member reasonably believes it
appropriate in order to protect its investment in the Interests or in order to
comply with any law, order, regulation or ruling applicable to it, (v) to its
officers, trustees, authorized representatives, employees, auditors or counsel
or to rating agencies or another holder of the Interests, (vi) to Persons who
are parties to similar confidentiality agreements, or (vii) to
18
the prospective transferee in connection with any contemplated transfer of any
of the Interests by such Member.
2.9 Redemption of Class C Interests at Option of Holders ("Put").
------------------------------------------------------------
(a) At any time within 180 days after December 31, 2005, if the
Company shall not have consummated prior to such date a Liquidity Event, the
Class C Members having more than fifty percent (50%) of the Class C Member
Interests outstanding as of April 29, 1998 (the "Majority Class C Holders") may
give the Company notice (a "Put Notice") of its or their intention to require
the Company to redeem ("Put") all, but not less than all, of the Class C
Interests held by such Majority Class C Members (collectively, together with
other Class C Interests as to which Members have requested repurchase as herein
provided the "Put Interests"). Upon receipt of a Put Notice, the Company shall
give a copy thereof to each other Class C Member. Each such other Class C
Member may, by written notice to the Company within five (5) Business Days after
receipt of a copy of the Put Notice, elect to include all, but not less than
all, of its Class C Interests in the Put Notice. Any Class C Member who fails
to give such notice to include its Class C Interest in the Put Notice, shall
thereafter have no further right to Put its Class C Interests to the Company.
The Company shall not be required to effect more than one Put pursuant to this
Section 2.9.
(b) Put Price. The redemption price ("Put Price") to be paid for each
Put Interest so redeemed pursuant to this Section 2.9 shall be an amount equal
to the Fair Market Value thereof.
(c) Closing of Put. The closing of the Put shall take place at the
principal office of the Company within one hundred twenty (120) days after the
date of the Put Notice (the "Put Date"). At the closing, the Majority Class C
Members who have participated in the Put shall receive from the Company a wire
transfer of immediately available funds in an amount equal to the total Put
Price for all Put Interests redeemed thereby pursuant to such Put.
(d) Dividends After Put Date. No Put Interest is entitled to any
dividends or other distributions accruing or paid after the Put Date. On such
date all rights of the Member of such redeemed Interest will cease, and such
Interest will not be deemed to be outstanding.
(e) Delay by Company.
----------------
(i) Upon receipt of a Put Notice from the Majority Class C
Member(s) that they wish to sell Class C Interests to the Company, the
Company shall immediately seek to determine in good faith a source of
financing to fund the purchase of all Class C Interests as to which
repurchase has been requested. The Company hereby agrees to use its best
efforts to complete the purchase of the Class C Interests from each Member
which has elected to Put the Class C Interests held by such Member in
accordance with this Section 2.9. For this purpose "best efforts" means
commercially reasonable terms for the Company consistent with industry
practice. If the Company is unable to purchase all of the Class C
Interests as to which repurchase has been requested, then it shall purchase
so much of such Class C Interests as it is permitted to so repurchase. In
the event and to the extent that the Company fails, by reason of (1)
unavailability of
19
financing as herein contemplated or (2) any contractual restriction on the
ability of the Company to satisfy its obligation to purchase the Put
Interests pursuant to Section 2.9 contained in any financing document or
(3) applicable legal restrictions or prohibitions (the "Put Conditions"),
to satisfy its obligation contained in this Section 2.9 in its entirety,
then, and in such event, the Company shall as soon as practicable and in
any event within ten (10) Business Days following the date of such Put
Notice notify (the "Put Non-Compliance Notice") each Member which has
elected to Put the Class C Interests held by such Member of its inability
to pay the Put Price and explain in reasonable detail which of the Put
Conditions are the basis for such inability.
(ii) Within fifteen (15) Business Days following the date of such
Put Non-Compliance Notice, the Company shall comply with the provisions of
this clause (ii) of Section 2.9(e). Any amounts which shall have become
payable pursuant to this Section 2.9 but which are not paid when due, will
be converted to subordinated indebtedness for borrowed money of the Company
as provided in this Section 2.9(e), will on and as of the related Put Date
then and thereupon be deemed to be subordinated indebtedness for borrowed
money of the Company which shall be evidenced by a note substantially in
the form attached hereto as Exhibit B (a "Put Note"), which Put Note shall
be dated the Put Date, shall bear interest at the rate hereinafter stated,
which interest shall be payable semiannually from and including the Put
Date to, but not including, the date of actual payment thereof, and shall
be due and payable on the second anniversary of the Put Date. On each
semiannual interest payment date, the Company may elect to pay interest on
such Put Date either in cash, in which event the interest rate payable in
respect of the Put Note for such semiannual period shall have been equal to
twelve percent (12%) per annum (computed on the basis of a 360-day year of
twelve 30-day months), or by the delivery of an additional note in the form
attached hereto as Exhibit B (a "PIK Note"), in which event the interest
rate payable in respect of the Put Note shall have been 14% per annum
(computed on the basis of a 360-day year of twelve 30-day months) and the
principal amount of such PIK Note shall be equal to interest at such 14%
per annum rate. Each Put Note, duly and properly executed, shall be
delivered by the Company to each Member of the Put Interests within fifteen
(15) Business Days of the date of the Put Non-Compliance Notice, together
with an opinion of counsel to the Company and such other customary showings
as each Member shall request evidencing that such Put Notes are a legal,
valid and binding obligations of the Company enforceable in accordance with
their respective terms. The Company shall also deliver the legal opinion
and other showings which it delivered with respect to the Put Note but
pertaining to such PIK Note. Thereafter on each semiannual interest
payment date in respect of the Put Note or any PIK Note, the Company may
elect to pay interest on and in respect of such Put Note or PIK Note, as
the case may be, either in cash at an interest rate equal to twelve percent
(12%) per annum (computed on the basis of a 360-day year of twelve 30-day
months) or by the delivery of another PIK Note, in which event the interest
rate payable in respect of such preceding semiannual interest payment
period relating to Put Note or PIK Note, as the case may be, shall be equal
to fourteen percent (14%) per annum (computed on the basis of a 360-day
year of twelve 30-day months) and the principal amount of the PIK Note
delivered in the event of such election shall be in an amount equal to
interest at such fourteen percent (14%) per annum interest rate.
20
(iii) The Company covenants and agrees that if it is unable to
satisfy one or more of the Put Conditions, then and in such event from and
after the Put Date it will not at any time thereafter declare or pay any
dividend or make any other distribution on any Interests (other than
distributions to fund tax obligations payable in a particular class or
series of preferred stock or Common Stock, as the case may be, to holders
thereof) or purchase, redeem, or otherwise acquire for consideration of any
Interests, unless and until the Company shall have satisfied and fulfilled
its obligations contained in this Section 2.9.
2.10 Conversion. Each of the Members hereby agrees that upon request of
the Berkshire Members, it will, at the expense of the Company, take such action
and execute such documents as may reasonably be necessary to convert the Company
into a corporation. In such event, Members shall be entitled to receive upon
such conversion that percentage of the securities of the corporation into which
the Company is converted as equals the percentage (and nature) of the Interests
which such Members held in the Company immediately prior to such conversion and
in the case of Marconi, the same economic rights that Marconi held with respect
to the PIK Preferred Interest immediately prior to the conversion; provided
that, (a) the Company shall have complied with all of the provisions of the
Operating Agreement, including, without limitation, those relating to
proportional adjustments and anti-dilution protection with respect to the
Interests, and (b) upon completion of such conversion the securities received by
each such Member shall be on parity. Without limiting the foregoing, in the
event that any of the Company's subsidiaries (or any successor corporation
thereto) agrees to consummate a Public Offering of its equity securities, the
Company agrees to cause such subsidiary to enter into a stockholders agreement
with the Members on terms no less favorable than the rights, preferences and
agreements set forth in this Agreement, including, without limitation the
registration rights provisions, prior to the consummation of such Public
Offering.
2.11 Registration Rights.
-------------------
(a) Definitions. As used in this Section 2.11, the following terms
-----------
shall have the following respective meanings:
"Common Stock" means common stock issued by any corporation into which the
Company shall be converted.
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Securities Act.
"Corporation" means any corporation which is a successor entity of the
Company .
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Registration Statement" means a registration statement filed by the
Corporation with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or any other form for a similar limited purpose, or
21
any registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 2.11(g).
"Registrable Shares" means (i) any shares of Common Stock hereafter
acquired by the Stockholders and any shares of Common Stock issued in respect of
such shares (because of stock splits, stock dividends, reclassification,
recapitalizations, or similar events); provided, however, that shares of Common
Stock which are Registrable Shares shall cease to be Registrable Shares upon any
sale pursuant to a Registration Statement or Rule 144 under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"Stockholder" means a Member which has become a stockholder of the
Corporation as contemplated by Section 2.10.
(b) Demand Registrations.
--------------------
(1) If the Corporation shall receive a written request (specifying
that it is being made pursuant to this Section 2.11(b)(1)) from the Berkshire
Members requesting that the Corporation file a registration statement under the
Securities Act or a similar document pursuant to any other statute then in
effect corresponding to the Securities Act, covering the registration of
Registrable Shares then owned by such Berkshire Members, the Corporation shall
promptly deliver a notice of such request to all other Members. Members may, by
written notice to the Corporation given within twenty-five (25) days after
receipt of the copy of the Berkshire Members' request, elect to include
Registrable Shares held by them in the registration requested by the Berkshire
Members. The Corporation shall not later than one hundred eighty (180) days
after receipt by the Corporation of such a written request from the Berkshire
Members, file a registration statement with the Commission relating to such
Registrable Shares as to which such request for a demand registration relates
and the Corporation shall use its best efforts to cause the offering of such
Registrable Shares to be registered under the Securities Act. The Corporation
shall be obligated to effect only two (2) registrations pursuant to this Section
2.11(b)(1); provided, however, that no registration initiated hereunder shall
count as a registration initiated hereunder unless and until it shall have been
consummated.
(2) If, pursuant to Section 2.11(c), the total amount of Registrable
Shares that all Stockholders request to be included in an offering made pursuant
to this Section 2.11(b) exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, then the
Corporation will include in such registration only the number of securities
which, in the good faith opinion of such underwriters, can be sold, and
Stockholders who requested that Registrable Securities be included in such
registration shall be entitled to include Registrable Securities pro rata based
on the number of Registrable Shares each of them owns.
22
(3) The underwriter of any registration requested under this Section
2.11(b) shall be selected by the Berkshire Members and shall be reasonably
acceptable to the Corporation.
(4) The Corporation may include shares in any registration requested
under this Section 2.11(b) if the inclusion of such shares would not limit the
number of Registrable Shares sought to be included by the Berkshire Members
making the demand and the other Members which have elected to participate in
such registration, or reduce the offering price thereof; provided that if the
number of shares sold by the Berkshire Members and such other Members is less
than one-half of the number of shares subject to such registration as a result
of the shares included by the Corporation, then such registration shall be
deemed to have been effected under Section 2.11(c) hereof and shall not count as
one of the two registrations which may be requested by the Berkshire Members
making the demand pursuant to this Section 2.11(b).
(c) Piggyback Registration. If, at any time, the Corporation
determines to register any of its equity securities (excluding the registration
of any equity security issued to non-affiliates of the Corporation as part of a
bona fide debt offering of units comprised of such equity security and a debt
security of the Corporation) for its own account or for the account of others
under the Securities Act in connection with the public offering of such
securities, the Corporation shall, at each such time, promptly give each
Stockholder written notice of such determination no later than twenty-five (25)
business days before the effective date of any such registration. Upon the
written request of any Stockholder received by the Corporation within fifteen
(15) days after the giving of any such notice by the Corporation, the
Corporation shall use its best efforts to cause to be registered under the
Securities Act all of the Registrable Shares of each Stockholder that such
Stockholder has requested be registered. If the total amount of Registrable
Shares that are to be included by the Corporation (or other person (including
any Stockholder) for whose account the registration is made) for its own account
and at the request of Stockholders pursuant to this Section 2.11(c) exceeds the
amount of securities that the underwriters reasonably believe compatible with
the success of the offering, then the Corporation will include in such
registration only the number of securities which in the opinion of such
underwriters can be sold, in the following order:
(i) first, the equity securities of the Corporation (or other
person at whose request the registration is made);
(ii) second, if the registration is not for the account of the
Corporation, the equity securities of the Corporation; and
(iii) third, the Registrable Shares requested to be included by
the Stockholders pro rata based on the number of Registrable Shares which
each of them owns with the effect and result that all of the Stockholders,
including without limitation, Berkshire Members, shall be treated equally
and ratably in connection with any registration pursuant to this Section
2.11(c); provided, however if an underwriter who is not an affiliate of any
Stockholder or the Corporation, in good faith, requests for the success of
the offering that the number of Registrable Shares to be sold by any of the
Stockholders exercising piggyback rights pursuant to this Section 2.11(c)
be apportioned
23
or excluded, such number of Registrable Shares of such Stockholders shall
be reduced or not included to the extent so requested by said underwriter.
(d) Registration on Form S-3. The Corporation shall use its best
efforts to qualify for registration on Form S-3 or any comparable or successor
form; and to that end the Corporation shall register (whether or not required by
law to do so) the Common Stock under the Exchange Act in accordance with the
provisions of the Exchange Act following the effective date of the first
registration of any securities of the Corporation on Form S-1 or any comparable
or successor form. After the Corporation has qualified for the use of Form S-3,
in addition to the rights contained in Section 2.11(b) hereof, the Stockholders
shall have the right to request an unlimited number of registrations on Form S-3
(such requests shall be in writing and shall state the number of shares of
Registrable Shares to be disposed of and the intended methods of disposition of
such shares by such Stockholder or Stockholders), provided that in no event
shall the Corporation be required to register shares with an aggregate market
value of less than Three Million Dollars ($3,000,000) and the Corporation shall
not be required to register Shares under this Section 4 more than twice in any
twelve (12) month period.
(e) Obligations of the Corporation.
------------------------------
(1) Whenever required under Sections 2.11(b) or 2.11(c) hereof to use
its best efforts to effect the registration of any Registrable Shares, the
Corporation shall:
(i) Prepare and file with the Commission a registration statement
with respect to such Registrable Shares and use its best efforts to cause
such registration statement to become and remain effective, including,
without limitation, filing of post-effective amendments and supplements to
any registration statement or prospectus necessary to keep the registration
statement current;
(ii) as expeditiously as reasonably possible, prepare and file
with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement and to keep each registration and qualification
under this Agreement effective (and in compliance with the Securities Act)
by such actions as may be necessary or appropriate for a period of up to
one hundred eighty (180) days (if, in the reasonable discretion of the
Stockholders owning securities covered by such registration statement, such
period of time is necessary for the successful completion of the offering
of such securities) after the effective date of such registration
statement, all as requested by such Stockholders;
(iii) as expeditiously as reasonably possible furnish to the
Stockholders such numbers of copies of a prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in
order to facilitate the disposition of Registrable Shares owned by them;
24
(iv) as expeditiously as reasonably possible use its best efforts
to register and qualify the securities covered by such registration
statement under such securities or "blue sky" laws of such jurisdictions as
shall be reasonably appropriate for the distribution of the securities
covered by the registration statement, provided that the Corporation shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of process
in any such jurisdiction, and further provided that (anything in this
Agreement to the contrary notwithstanding with respect to the bearing of
expenses) if any jurisdiction in which the securities shall be qualified
shall require that expenses incurred in connection with the qualification
of the securities in that jurisdiction be borne by selling stockholders,
then such expenses shall be payable by selling stockholders pro rata, to
the extent required by such jurisdiction;
(v) use its best efforts to cause all Registrable Shares covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition or such
Registrable Shares;
(vi) notify each seller of Registrable Shares covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or
upon 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 any material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were
made, and at the request of any such seller or Stockholders promptly
prepare and furnish to such seller or Stockholders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, 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 not misleading in the
light of the circumstances under which they were made;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more than
eighteen months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 2.10(k)(1) of the Securities Act,
and will furnish to each such seller of Registrable Shares at least two (2)
business days prior to the filing thereof a copy of any post-effective
amendment or supplement to such registration statement or prospectus and
shall not file any thereof to which any such seller shall have reasonably
objected, except to the extent required by law, on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or of the rules or regulations
thereunder;
25
(viii) provide and cause to be maintained a transfer agent and
registrar for all Registrable Shares covered by such registration statement
from and after a date not later than the effective date of such
registration statement; and
(ix) use its best efforts to list all Registrable Shares covered
by such registration statement on any securities exchange on which any
class of Registrable Shares is then listed.
(2) The Corporation will furnish to each Stockholder on whose behalf
Registrable Shares have been registered pursuant to this Agreement a signed
counterpart, addressed to such Stockholder, of an opinion of counsel for the
Corporation dated the effective date of such registration statement, and such
opinion of counsel shall cover those matters which are customarily covered in
opinions of issuer's counsel delivered to underwriters in connection with
underwritten public offerings of securities.
(3) To the extent then permitted under applicable professional
guidelines and standards, obtain a comfort letter from the Corporation's
independent public accountants in customary form and covering such matters of
the type customarily covered by comfort letters and an opinion from the
Corporation's counsel in customary form and covering such matters of the type
customarily covered in a public issuance of securities, in each case addressed
to the Stockholder, and provide copies thereof to the Stockholders;
(e) In connection with the preparation and filing of each registration
statement registering Registrable Shares under this Agreement, the Corporation
will give the Stockholders on whose behalf such Registrable Shares are to be so
registered and their underwriters, if any, and their respective counsel and
accountants, the opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto, and will give each
of them such access to its books and records and such opportunities to discuss
the business of the Corporation with its officers, its counsel and the
independent public accountants who have certified its financial statements, as
shall be necessary, in the opinion of such Stockholders or such underwriters or
their respective counsel, in order to conduct a reasonable and diligent
investigation within the meaning of the Securities Act.
(f) Furnish Information. It shall be a condition precedent to the
obligations of the Corporation to take any action pursuant to this Agreement
that the Stockholders shall furnish to the Corporation such information
regarding them, the Registrable Shares held by them, and the intended method of
disposition of such securities as the Corporation shall reasonably request and
as shall be required in connection with the action to be taken by the
Corporation.
(g) Expenses of Registration. All expenses incurred in connection
with a registration pursuant to Sections 2.11(b) or 2.11(c) hereof (excluding
underwriters' discounts and commissions, which shall be borne by the sellers),
including without limitation all registration and qualification fees, printers'
and accounting fees, fees and disbursements of counsel for the Corporation and
the reasonable fees and disbursements of one counsel for the selling
Stockholders (which counsel shall be selected by a majority in interest of such
Stockholders) shall be borne by the Corporation; provided, however, that the
Stockholders requesting a demand
26
registration pursuant to Section 2.11(b)(1) may withdraw such request, in which
event so long as such Stockholders agree to pay all expenses incurred by the
Corporation in connection with such requested registration, such withdrawn
request shall be deemed for all purposes herein not to have been made.
(h) Underwriting Requirements. In connection with any registration of
Registrable Shares under this Agreement, the Corporation will, if requested by
the underwriters for any Registrable Shares included in such registration, enter
into an underwriting agreement with such underwriters for such offering, such
agreement to contain such representations and warranties by the Corporation, and
such other terms and provisions as are customarily contained in underwriting
agreements with respect to secondary distributions, including, without
limitation, provisions relating to indemnification and contribution. The
Stockholders on whose behalf Registrable Shares are to be distributed by such
underwriters shall be parties to any such underwriting agreement, and the
representations and warranties by, and the other agreements on the part of the
Corporation to and for the benefit of such underwriters shall be also made to
and for the benefit of such Stockholders. The Corporation shall use its
reasonable best efforts to cause the underwriting agreement to comply with
Section 2.11(i) to this Agreement.
(i) Indemnification. In the event any Registrable Shares are included
in a registration statement as provided in this Agreement:
(1) To the fullest extent permitted by law, the Corporation will
indemnify and hold harmless each Stockholder requesting or joining in a
registration, any underwriter (as defined in the Securities Act) for it,
and each person, if any, who controls such Stockholder or such underwriter
within the meaning of the Securities Act, from and against any losses,
claims, damages, expenses (including reasonable attorneys' fees and
expenses and reasonable costs of investigation) or liabilities, joint or
several, to which they or any of them may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages,
expenses or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based on any untrue or
alleged untrue statement of any material fact contained in such
registration statement including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, 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 arise out of any alleged
violation by the Corporation of any rule or regulation promulgated under
the Securities Act applicable to the Corporation and relating to action or
inaction required of the Corporation in connection with any such
registration; provided, however, that the indemnity agreement contained in
this Section 2.11(i)(1) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Corporation (which consent shall not be
unreasonably withheld), nor shall the Corporation be liable to anyone for
any such loss claim, damage, liability or action to the extent that it
arises out of or is based upon an untrue statement or omission made in
connection with such registration statement, preliminary prospectus, final
prospectus or amendments or supplements thereto in reliance upon and in
conformity with written information furnished expressly for use in
connection with such registration by such Stockholder, underwriter or
control person. Such indemnity shall remain in full force and
27
effect regardless of any investigation made by or on behalf of such
Stockholder, underwriter or control person and shall survive the transfer
of such securities by such Stockholder.
(2) To the fullest extent permitted by law, each Stockholder
requesting or joining in a registration will indemnify and hold harmless
the Corporation, as the case may be, each of its directors, each of its
officers who has signed the registration statement, each person, if any,
who controls the Corporation within the meaning of the Securities Act, and
each agent and any underwriter for the Corporation and any person who
controls any such agent or underwriter and each other Stockholder and any
person who controls such Stockholder (within the meaning of the Securities
Act) against any losses, claims, damages or liabilities to which the
Corporation or any such director, officer, control person, agent,
underwriter, or other Stockholder may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereto) arise out of or are based upon an untrue
statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein
or any amendments or supplements thereto, or arise out of or are based upon
the omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to
the extent, but only to the extent, that such untrue statement or omission
was made in such registration statement, preliminary or final prospectus,
or amendments or supplements thereto, in reliance upon and in conformity
with written information furnished by such Stockholder with respect to such
Stockholder expressly for use in connection with such registration; and
such Stockholder will reimburse any legal or other expenses reasonably
incurred by the Corporation or any such director, officer, control person,
agent, underwriter, or other Stockholder in connection with investigating
or defending any such loss, claim, damage, liability or action; provided
however, the indemnity obligation of each such Stockholder hereunder shall
be limited to and shall not exceed the net proceeds actually received by
such Stockholder upon a sale of Registrable Shares pursuant to a
registration statement hereunder; and provided, further that the indemnity
agreement contained in this Section 2.11(i)(2) shall not apply to amounts
paid in settlements effected without the consent of such Stockholder
(which consent shall not be unreasonably withheld). Such indemnity shall
remain in full force and effect regardless of any investigation made by or
on behalf of the Corporation or any such director, officer, Stockholder,
underwriter or control person and shall survive the transfer of such
securities by such Stockholder.
(3) Any person seeking indemnification under this Section 2.11(i)
will (i) give prompt notice to the indemnifying party of any claim with
respect to which it seeks indemnification (but the failure to give such
notice will not affect the right to indemnification hereunder, unless the
indemnifying party is materially prejudiced by such failure) and (ii)
unless in such indemnified party's reasonable judgment a conflict of
interest may exist between such indemnified and indemnifying parties with
respect to such claim, permit such indemnifying party, and other
indemnifying parties similarly situated, jointly to assume the defense of
such claim with counsel reasonably satisfactory to the parties. In the
event that the indemnifying parties cannot mutually agree as to the
selection of counsel, each indemnifying party may retain separate counsel
to act on its
28
behalf and at its expense. The indemnified party shall in all events be
entitled to participate in such defense at its expense through its own
counsel. If such defense is not assumed by the indemnifying party, the
indemnifying party will not be subject to any liability for any settlement
made without its consent (but such consent will not be unreasonably
withheld). No indemnifying party will consent to entry of any judgment or
enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of
more than one counsel for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim,
in which event the indemnifying party shall be obligated to pay the
reasonable fees and expenses of such additional counsel.
(4) If for any reason the foregoing indemnification is
unavailable to any party or insufficient to hold it harmless as and to the
extent contemplated by the preceding paragraphs of this Section 2.11(i),
then each indemnifying party shall contribute to the amount paid or payable
by the indemnified party as a result of such loss, claim, damage, expense
or liability in such proportion as is appropriate to reflect the relative
benefits received by the Corporation, on the one hand, and the applicable
indemnified party, as the case may be, on the other hand, and also the
relative fault of the Corporation and any applicable indemnified party, as
the case may be, as well as any other relevant equitable considerations.
(j) Lock-Up Agreement. If required by the underwriter, each
Stockholder agrees not to sell or otherwise transfer or dispose of any Common
Stock (or other securities) of the Corporation held by such Stockholder (other
than securities included in the applicable registration statement, or shares
purchased in the public market after the effective date of registration or
shares or other securities acquired other than by receipt of Interests pursuant
to the Operating Agreement or this Agreement) or any interest or future interest
therein during such period (not to exceed 180 days if such registration is the
Corporation's initial public offering and not to exceed 90 days if such
registration is other than the Corporation's initial public offering) as is
acceptable to the underwriter following the effective date of each registration
statement of the Corporation filed under the Securities Act which includes
securities to be sold to the public in an underwritten offering. The
Corporation may impose stop transfer instructions with respect to the shares (or
securities) subject to the foregoing restriction until the end of said period.
Nothing contained herein shall be deemed or construed to require BancBoston
Investments Inc. or Northwestern to refrain from selling any Common Stock or
other securities, in whole or in part, if any such sale shall be pursuant to a
private placement to a Qualified Institutional Investor within the provisions of
an exemption from the registration requirements under the Securities Act or is
consummated within the limitations of Rule 144 promulgated under the Securities
Act.
(k) No Inconsistent Agreements. The Corporation agrees that it has
not entered into, and it will not hereafter enter into, any Agreement with
respect to the registration of its securities that is inconsistent with (or
superior to) the rights granted to the Stockholders in this Agreement.
29
(l) Stock Split. If, on or after the receipt by the Corporation of a
request for registration of a public offering pursuant to Section 2.11(b)
hereof, the proposed managing underwriter or underwriters of such offering
reasonably believes that the number of shares to be registered is less than the
minimum number necessary for the success of such offering, the Corporation shall
use its best efforts to cause each share of its outstanding Common Stock to be
converted into such number of shares of such Common Stock so that the number of
shares of Registrable Shares to be registered is equal to the minimum number
which such managing underwriter or underwriters reasonably believes is necessary
for the success of such offering. If necessary in connection therewith, the
Corporation shall use its best efforts to cause to be recommended, approved and
adopted by its Board of Directors and approved and adopted by its stockholders,
and, if so approved and adopted, file and cause to become effective, an
amendment to its certificate of incorporation increasing the number of shares of
Common Stock which the Corporation is authorized to issue. Each Stockholder
hereby agrees to vote the shares of Common Stock held by it in favor of adopting
such amendment.
(m) Rule 144 Requirements. After the earlier of (i) the closing of
the sale of securities of the Corporation pursuant to a Registration Statement
or (ii) the registration by the Corporation of a class of securities under
Section 12 of the Exchange Act, the Corporation agrees:
(1) to comply with the requirements of Rule 144(c) under the
Securities Act with respect to current public information about the Corporation;
(2) to use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Corporation under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(3) to furnish to any holder of Registrable Shares upon request (i) a
written statement by the Corporation as to its compliance with the requirements
of said Rule 144(c), and the reporting requirements of the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Corporation, and (iii) such other reports and documents of the Corporation as
such holder may reasonably request to avail itself of any similar rule or
regulation of the Commission allowing it to sell any such securities without
registration.
(n) Mergers, Etc. The Corporation shall not, directly or indirectly,
enter into any merger, consolidation or reorganization in which the Corporation
shall not be the surviving corporation unless the proposed surviving corporation
shall, prior to such merger, consolidation or reorganization, agree in writing
to assume the obligations of the Corporation under this Agreement, and for that
purpose references hereunder to "Registrable Shares" shall be deemed to be
references to the securities which the Stockholders would be entitled to receive
in exchange for Registrable Shares under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Section 2.11(n)
shall not apply in the event of any merger, consolidation or reorganization in
which the Corporation is not the surviving corporation if the Stockholders are
entitled to receive in exchange for their Registrable Shares consideration
consisting solely of (i) cash, (ii) securities of the acquiring corporation
which may be immediately sold to the public without registration under the
Securities Act, or (iii) securities of
30
the acquiring corporation which the acquiring corporation has agreed to register
within (90) days of completion of the transaction for resale to the public
pursuant to the Securities Act.
(o) Exception to Registration. The Corporation shall not be required
to effect a registration under this Agreement if (i) in the written opinion of
counsel for the Corporation, which counsel and the opinion so rendered shall be
reasonably acceptable to the Stockholders holding Registrable Shares, such
Stockholders may sell without registration under the Act all Registrable Shares
for which they requested registration under the provisions of the Act and in the
manner and in the quantity in which the Registrable Shares were proposed to be
sold or (ii) if the Corporation determines in its good faith judgment that the
use of any prospectus would require the disclosure of material information that
the Corporation has a bona fide business purpose for preserving as confidential
or the disclosure of which would impede the Corporation's ability to consummate
a transaction which the Corporation is not otherwise required by applicable
securities laws or regulations to disclose. Upon written notice of such
determination by the Corporation, the rights of the Stockholders to offer, sell
or distribute any Registrable Shares or to require the Corporation to take
action with respect to the registration or sale of any Registrable Shares
pursuant to this Agreement shall be suspended until the date upon which the
Corporation notifies the Stockholders in writing (the "Suspension Termination
Notice") that suspension of such rights for the grounds set forth in this
Section 15 is no longer necessary. The Corporation agrees to give Suspension
Termination Notice as promptly as practicable following the date that such
suspension of rights is no longer necessary (but in any event any such
suspension shall be effective for a period not in excess of 180 days in any
calendar year). If the Corporation shall give any Suspension Termination
Notice, the time periods set forth in Section 2 above shall be extended by the
number of days during which the period from and including the date of the giving
of such notice of suspension to and including the date the Corporation delivers
the Suspension Termination Notice.
The Stockholders each agree not to offer, sell, contract to sell or
otherwise dispose of any Registrable Shares, or any securities convertible into
or exchangeable or exercisable for Registrable Shares during any period when,
and to the same extent that, any officers of the Corporation are restricted in
connection with an offering of securities by the Corporation; provided that
nothing herein contained shall be deemed or construed to require a Member to so
refrain from disposing of any securities of the Corporation acquired by it other
than by reason of the issuance of the Interests and conversion thereof into
Common Stock during any such period of time, if any such sale shall be pursuant
to a private placement to a Qualified Institutional Investor within the
provisions of an exemption from the registration requirements under the
Securities Act or is consummated within the limitations of Rule 144 promulgated
under the Securities Act. The Corporation shall give reasonable advance notice
to each such Stockholder of such offering, which notice shall state in
reasonable detail whether or not the Corporation believes the agreement herein
contained to refrain from selling or otherwise disposing of Registrable Shares
or any securities convertible into or exchangeable or exercisable for such
Registrable Shares is applicable to such Stockholder.
(p) Listing Application. If shares of any class of stock of the
Corporation shall be listed on a national securities exchange, the Corporation
shall, at its expense, include in its listing application all of the shares of
the listed class then eligible for listing owned by any Stockholder.
31
(q) Damages. The Corporation recognizes and agrees that the holder
of Registrable Shares shall not have an adequate remedy if the Corporation fails
to comply with the provisions of this Agreement, and that damages will not be
readily ascertainable, and the Corporation expressly agrees that in the event of
such failure any Stockholder shall be entitled to seek specific performance of
the Corporation's obligations hereunder.
(r) Termination. All of the Corporation's obligations to register
Registrable Shares under this Agreement shall terminate on the fifteenth
anniversary of this Agreement.
(s) Transfers of Rights. The rights and obligations of each
Stockholder hereunder, may be assigned by such Stockholder to any person or
entity acquiring Registrable Shares owned by such Stockholder, and such
transferee shall be deemed a "Stockholder" for purposes of this Agreement. Any
Registrable Shares owned by a transferee hereunder who acquired such Registrable
Shares pursuant to a Permitted Transfer, shall be deemed to be owned, for all
purposes of this Agreement, by a member of the Stockholder group of which the
transferring Stockholder is or was a member.
(t) Covenant. The Company (or successor corporation, as the case may
be) hereby covenants with Marconi on the same terms as it covenants with the
holders of the Senior Subordinated Notes pursuant to the Indenture (in the form
it is in on the date hereof).
(u) The Company will not incur, create, issue, assume, guarantee or
otherwise become liable for any membership interests (or successor or similar
equity interests) in it of whatever kind which rank prior to or pari passu
(whether in point of payment or otherwise) its obligations to Marconi in
relation to the PIK Preferred Interest.
2.12 Senior Issuances. The Company will not incur, create, issue, assume,
guarantee or otherwise become liable for any membership interests (or successor
or similar equity interests) in it of whatever kind which rank prior to or pari
passu with (whether in point of payment or otherwise) its obligations to Marconi
in relation to the PIK Preferred Interest.
ARTICLE III
Miscellaneous
-------------
3.1 Remedies. The parties to this Agreement acknowledge and agree that
the covenants of the Company and the Members set forth in this Agreement may be
enforced in equity by a decree requiring specific performance. In the event of
a breach of any material provision of this Agreement, the aggrieved party will
be entitled to institute and prosecute a proceeding in any court of competent
jurisdiction to enforce specific performance of such provision, as well as to
obtain damages for breach of this Agreement. Without limiting the foregoing, if
any dispute arises concerning the sale or other disposition of any of the
Interests subject to this Agreement or concerning any other provisions hereof or
the obligations of the parties hereunder, the parties to this Agreement agree
that an injunction may be issued in connection therewith (including, without
limitation, restraining the sale or other disposition of such Interests or
rescinding any such sale or other disposition). Such remedies shall be
cumulative and non-exclusive and shall be in addition to any other rights and
remedies the parties may have under this Agreement or otherwise.
32
3.2 Entire Agreement; Amendment; Waiver. This Agreement, together with
the Exhibits hereto, and the Warrant Agreement (relating to the Warrants) sets
forth the entire understanding of the parties, and supersedes all prior
agreements and all other arrangements and communications, whether oral or
written, with respect to the subject matter hereof. Exhibit A may be amended to
reflect changes in the composition of the Members and changes in ownership that
may occur from time to time as a result of Permitted Transfers or Transfers
permitted under Article II hereof. Amendments to the Schedule reflecting
Permitted Transfers or Transfers permitted under Article II hereof shall become
effective when a copy of the Agreement as executed by any new transferee, are
filed with the Company, except as otherwise provided in Section 3.12 hereof.
Any other amendments to, or the termination of, this Agreement shall require the
prior written consent of the Company and a majority in interest of each of the
Berkshire Members and the Management Members; provided that no amendment which
adversely affects any Other Investor or Northwestern without a like effect on
other Members may be made without the consent of such Other Investor, Marconi or
Northwestern; provided further, that Marconi shall be entitled, for the
avoidance of doubt, to consider its interests as holder of Warrants in
determining whether to grant its consent; and provided further that in no event
may the definitions of Fair Market Value, Permitted Transfer and Qualified
Institutional Investor or Sections 2.4, 2.5, 2.6(h), 2.7 (but only insofar as it
adversely effects Northwestern's rights without a like effect on all other
Members), 2.8, 2.9 or 2.11 (but only insofar as it relates to Northwestern's
ability to include Registrable Shares in a registration and Northwestern's
ability to sell during a lock-up period), or this Section 3.2 be amended without
the written consent of Northwestern. Notwithstanding any provisions to the
contrary contained herein, any party may waive any rights with respect to which
such party is entitled to the benefits under this Agreement. No waiver of or
consent to any departure from any provision of this Agreement shall be effective
unless signed in writing by the party entitled to the benefit thereof.
3.3 Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if the invalid or
unenforceable provision were omitted.
3.4 Notices. All notices and other communications necessary or
contemplated under this Agreement shall be in writing and shall be delivered in
the manner specified herein or, in the absence of such specification, shall be
deemed to have been duly given three business days after mailing by certified
mail, when delivered by hand upon confirmation of receipt by telecopy, or one
day after sending by overnight delivery service, to the respective addresses of
the parties set forth below:
(a) For notices and communications to Company to:
Weigh-Tronix, LLC
1000 Armstrong Drive
Fairmont, MN 56031-1000
Attention: President
Facsimile:
(b) for notices and communications to the Management Members, to their
respective addresses set forth in the Schedule, in either case, with a copy
to:
33
Hinckley, Allen & Snyder
1500 Fleet Center
Providence, Rhode Island 02903
Attention: Stephen J. Carlotti, Esq.
Facsimile: (401) 277-9600
(c) for notices and communications to the Berkshire Members, to their
respective addresses set forth in the Schedule, with a copy to:
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
Attention: James Westra, Esq.
Facsimile: (617) 951-1295
(d) for notices and communications to any other Members, to their
respective addresses set forth in the Schedule.
By notice complying with the foregoing provisions of this Section 3.4, each
party shall have
the right to change the mailing address for future notices and communications to
such party.
3.5 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective transferees,
successors and assigns; provided, however, that the rights under this Agreement
may not be assigned except as expressly provided herein, it being understood
that the Company's rights hereunder may be assigned by the Company to any
corporation which is the surviving entity in a merger, consolidation or like
event involving the Company. No such assignment shall relieve an assignor of
its obligations hereunder.
3.6 Governing Law. This Agreement shall be governed by the law of the
State of Delaware (regardless of the laws that might otherwise govern under
applicable Delaware principles of conflicts of law) as to all matters, including
but not limited to matters of validity, construction, effect, performance and
remedies.
3.7 Termination. This Agreement shall terminate upon consummation of a
Liquidity Event; provided that if such Liquidity Event is a Public Offering,
then the provisions of Section 2.11 shall continue in full force and effect.
3.8 Recapitalizations, Exchanges, Etc. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to Interests, to
any and all shares of capital stock of the Company or any successor or assign of
the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or in substitution of the
Interests, by reason of a stock dividend, stock split, stock issuance, reverse
stock split, combination, recapitalization, reclassification, merger,
consolidation or otherwise.
34
3.9 Action Necessary to Effectuate the Agreement. The parties hereto
agree to take or cause to be taken all such corporate and other action as may be
necessary to effect the intent and purposes of this Agreement.
3.10 Purchase for Investment; Legend on Certificate. Each of the parties
acknowledges that all of the Interests held by such party are being (or have
been) acquired for investment and not with a view to the distribution thereof
and that no transfer, hypothecation or assignment of Interests may be made
except in compliance with applicable federal and state securities laws. If the
Interests which are now or hereafter owned by the Members and which are subject
to the terms of this Agreement are certificated then shall have endorsed in
writing, stamped or printed, thereon the following legends:
"TRANSFER RESTRICTED
(a) The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, and may not
be sold, offered for sale, pledged or hypothecated in the absence of
an effective registration statement as to the securities under said
Act or an opinion of counsel satisfactory to the Company and its
counsel that such registration is not required.
(b) The Company is authorized to issue more than one class or series of
securities. A copy of the preferences, powers, qualifications and
rights of each class or series will be furnished by the Company upon
request and without charge.
(c) The securities represented by this Certificate are subject to the
terms and conditions, including certain restrictions on transfer, of a
Members' Agreement dated as of June 13, 2000, as amended from time to
time, and none of such securities, or any interest therein, shall be
transferred, pledged, encumbered or otherwise disposed of except as
provided in that Agreement. A copy of the Members' Agreement is on
file with the Secretary of the Company and will be mailed to any
properly interested person without charge within five (5) days after
receipt of a written request."
All shares shall also bear all legends required by federal and state
securities laws. In the event that the Company shall receive an opinion of
counsel to a Qualified Institutional Investor (which may be internal counsel to
such Qualified Institutional Investor) that, in the opinion of such counsel, the
legend set forth in clause (a) above is not, or is no longer necessary or
required (including, without limitation, because of the availability of the
exemption afforded by Rule 144 or Rule 144A promulgated under the Securities
Act), the Company shall remove such legend from the certificates evidencing the
Interests held by such Qualified Institutional Investor or issue new
certificates without such legend in lieu thereof.
3.11 Effectiveness of Transfers. All Interests transferred by a Member
(other than pursuant to an effective registration statement under the Securities
Act or pursuant to a Rule 144 Transaction) shall, except as otherwise expressly
stated herein, be held by the Transferee thereof pursuant to this Agreement.
Such Transferee shall, except as otherwise expressly stated herein, have all the
rights and be subject to all of the obligations of a Member under this Agreement
(as
35
though such party had so agreed pursuant to Section 3.12 hereof) automatically
and without requiring any further act by such transferee or by any parties to
this Agreement. Without affecting the preceding sentence, if such transferee is
not a Member on the date of such transfer, then such transferee, as a condition
to such transfer, shall confirm such transferee's obligations hereunder in
accordance with Section 3.12 hereof. No Interests shall be transferred on the
Company's books and records, and no transfer of Interests shall be otherwise
effective, unless any such transfer is made in accordance with the terms and
conditions of this Agreement, and the Company is hereby authorized by all of the
Members to enter appropriate stop transfer notations on its transfer records to
give effect to this Agreement.
3.12 Other Members. Subject to the restrictions on transfers of Interests
contained herein, any person or entity who is not already a Member acquiring
Interests, shall, on or before the transfer or issuance to it of Interests, sign
a counterpart to this Agreement in form reasonably satisfactory to the Company
and shall thereby become a party to this Agreement to be bound hereunder as (i)
a Management Member if a Permitted Transferee of a Management Member or an
employee of the Company or any of its Subsidiaries or an entity all of whose
equity holders or members are employees of the Company or any of its
Subsidiaries, (ii) a Berkshire Member if a Permitted Transferee of a Berkshire
Member or an employee or affiliate of Berkshire Partners LLC or (iii) an "Other
Member" if such transferee does not fall within either clause (i) or (ii) above.
Each such additional Member shall be listed on the Schedule, as amended from
time to time.
3.13 No Waiver. No course of dealing and no delay on the part of any
party hereto in exercising any right, power or remedy conferred by this
Agreement shall operate as waiver thereof or otherwise prejudice such party's
rights, powers and remedies. No single or partial exercise of any rights,
powers or remedies conferred by this Agreement shall preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
3.14 Counterpart. This Agreement may be executed in two or more
counterparts each of which shall be deemed an original but all of which together
shall constitute one and the same instrument, and all signatures need not appear
on any one counterpart.
3.15 Headings. All headings and captions in this Agreement are for
purposes of reference only and shall not be construed to limit or affect the
substance of this Agreement.
3.16 Number; Gender. When the context so requires, the singular shall
include the plural and the plural shall include the singular and the gender of
any pronoun shall include the other gender.
3.17 Consent to Jurisdiction. The Company and each of the Members, by its
or his execution hereof, (i) hereby irrevocably submit to the jurisdiction of
the state courts of the Commonwealth of Massachusetts for the purposes of any
claim or action arising out of or based upon this Agreement or relating to the
subject matter hereof, and (ii) hereby waive, to the extent not prohibited by
applicable law, and agree not to assert by way of motion, as a defense or
otherwise, in any such claim or action, any claim that it or he is not subject
personally to the jurisdiction of the above-named courts, that its or his
property is exempt or immune from attachment or execution, that any such
proceeding brought in the above-named court is improper,
36
or that this Agreement or the subject matter hereof may not be enforced in or by
such court. The Company and each of the Members hereby consent to service of
process in any such proceeding in any manner permitted by Massachusetts law, and
agree that service of process by registered or certified mail, return receipt
requested, at its address specified pursuant to Section 3.4 hereof is reasonably
calculated to give actual notice.
3.18 Costs and Expenses. The Company shall pay its own costs and expenses
incurred and the reasonable costs and expenses incurred by each Management
Member in connection with this Agreement, and any and all other documents
furnished pursuant hereto or in connection herewith.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
37
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
Counterpart Signature Page
--------------------------
IN WITNESS WHEREOF, the parties have executed this Agreement as an
instrument
under SEAL as of the date first above written.
WEIGH-TRONIX, LLC
By: /s/ Weigh-Tronix, LLC
---------------------
Name:
Title:
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
Counterpart Signature Page
--------------------------
BERKSHIRE MEMBERS:
BERKSHIRE FUND IV INVESTMENT CORP.
By: /s/ Berkshire Fund IV Investment Corp.
--------------------------------------
Name:
BERKSHIRE INVESTORS, LLC
By: /s/ Berkshire Investors, LLC
----------------------------
Name
Title:
BERKSHIRE FUND V INVESTMENT CORP.
By: /s/ Berkshire Fund V Investment Corp.
-------------------------------------
Name:
Title:
2
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
Counterpart Signature Page
--------------------------
NORTHWESTERN:
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
By: /s/ The Northwestern Mutual Life Insurance
------------------------------------------
Company
-------
3
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
Counterpart Signature Page
--------------------------
MANAGEMENT MEMBERS:
/s/ John J. McCann, III
------------------------
John J. McCann, III
/s/ Roger W. Evans
------------------
Roger W. Evans
/s/ David R. Castle
-------------------
David R. Castle
/s/ Larry Gunning
-----------------
Larry Gunning
R&H Trust Co. [Jersey] Limited
By: /s/ R&H Trust Co. [Jersey] Limited
----------------------------------
4
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
WEIGH-TRONIX, LLC
MEMBER'S AGREEMENT
Counterpart Signature Page
--------------------------
OTHER MEMBERS:
DISCRETIONARY SETTLEMENT SUNAPEE SECURITIES, INC.
Dated May 6, 1998
By: /s/ Discretionary Settlement By: /s/ Sunapee Securities, Inc.
---------------------------- ----------------------------
DOMINIC'S TRUST SQUAM LAKE INVESTORS, III, L.P.
Dated May 7, 1998 By: GPI, Inc., its General Partner
By: /s/ Dominic's Trust By: /s/ Squam Lake Investors, III, L.P.
------------------- -----------------------------------
NICHOLAS' TRUST BANCBOSTON INVESTMENTS INC.
Dated May 8, 1998
By: /s/ Nicholas' Trust By: /s/ BancBoston Investments Inc.
------------------- -------------------------------
W-T INVESTMENT, LLC CRAIG L. BURR 1986 CHILDREN'S TRUST
By: /s/ W-T InvestmentBy: By: William P. Egan, Trustee
------------------ ------------------------
William P. Egan, Trustee
/s/ Rowland Moriarty
- --------------------
Rowland Moriarty
5
WEIGH-TRONIX, LLC
AMENDED AND RESTATED MEMBERS' AGREEMENT
WEIGH-TRONIX, LLC
MEMBER'S AGREEMENT
Counterpart Signature Page
--------------------------
MARCONI, INC.
By: /s/ Marconi, Inc.
-----------------