KILOVAC CORPORATION
SECOND AMENDMENT
TO
STOCK SUBSCRIPTION AND PURCHASE AGREEMENT
This SECOND AMENDMENT TO STOCK SUBSCRIPTION AND PURCHASE AGREEMENT
(this "Amendment") dated as of April 3, 1997 is made and entered into by and
among CII TECHNOLOGIES INC., a Delaware corporation ("Parent"), COMMUNICATIONS
INSTRUMENTS, INC., a North Carolina corporation ("Buyer"), KILOVAC CORPORATION,
a California corporation (the "Company"), and the stockholders executing this
Amendment (individually, a "Selling Shareholder" and collectively, the Selling
Shareholders").
W I T N E S S E T H :
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WHEREAS, the parties hereto are parties to the Stock Subscription and
Purchase Agreement dated as of September 20, 1995 (the "1995 Agreement") , as
amended by the,.First Amendment to Stock Subscription and Purchase Agreement
dated as of August 26, 1996 (the "First Amendment") (the 1995 Agreement and the
First Amendment together, the "Agreement) , by which the Company redeemed 80% of
its outstanding Class A Common Shares, no par value (the "Common Stock"), and
Buyer purchased an equal number of shares of Common Stock; and
WHEREAS, because the initial public offering of Parent stock that was
contemplated pursuant to the First Amendment was not completed on or before
December 31, 1996, the modifications of the 1995 Agreement set forth in the
First Amendment (other than the provisions of Section 7 of the First Amendment)
are void and of no force or effect; and
WHEREAS, the Agreement contains certain provisions raising to relating
to the shares of Common stock retained by the Selling Shareholders following the
redemption (such shares as defined in the Agreement, the "Continuing Shares");
and
WHEREAS, Parent, Buyer and the selling Shareholders have determined
that it is in their mutual best interests to amend the Agreement to fix the
purchase price for the Continuing Shares and eliminate the possible forfeiture
of one-half of the Continuing Shares;
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants, agreements, terms and conditions
contained herein, the parties hereto do hereby agree as follows:
1. Effectiveness of Amendment. The modifications to the Agreement set
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forth herein shall he effective upon the execution and delivery of this
Amendment by all of the parties hereto.
2. Restatement of Section 1.7 . Section 1.7 of the Agreement is hereby
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amended and restated, in its entirety as set forth below. Any part or
subsection of such Section 1.7 not restated herein is hereby deleted.
"1.7 Continuing Common Stock.
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1.7.1 Definitions. For purposes of this Section 1.7 the
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following terms shall have the meanings set forth below:
"Continuing Shares" shall mean the shares of Common Stock not transferred
and redeemed by the Company at the Closing Date.
"Redemption Price" shall mean the per share purchase price determined by
dividing $4,500,000 by 24,957 the number of Continuing Shares outstanding
a's of the date hereof. Unless adjusted as provided in the following
sentence, the per share Redemption Price shall equal $180.31. If there is
any share dividend or split, or any exchange or recapitalization or other
event affecting the Company's Common Stock, the Redemption Price shall be
adjusted to eliminate the effect thereof so that the holders of Continuing
Shares shall be entitled to receive in the aggregate $4,500,000 on
Surrender of all of their interests in the Company as holders of Continuing
Shares.
1.7.2 Share Sale Adjustment. [Intentionally Deleted]
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1.7.3 Purchase of Continuing Shares. Buyer shall purchase and redeem
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the Continuing Shares in accordance with the following:
1.7.3.1 Final Redemption. If the Continuing Shares are not
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earlier purchased and the purchase obligations are not earlier terminated
on an IPO or a Sale as provided below, Buyer shall effective December 31,
2005 ("Final Redemption") purchase the Continuing Shares. The per share
purchase price for the Continuing Shares outstanding on such date shall
equal the Redemption Price.
1.7.3.2 Early Redemption. If the Continuing Shares are not
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purchased prior to July 31, 2001 ("Early Redemption") and the purchase
obligations are not earlier terminated on an IPO or a Sale as provided
below, Buyer shall at the election of any Shareholder purchase the
Continuing Shares owned by such Shareholder. The per share purchase price
payable with respect to the Continuing Shares outstanding on, such date
shall equal the Redemption Price. The foregoing Shareholder election may be
exercised by each Shareholder only during the period commencing August 1,
2001 and continuing until and including November 30, 2001, by giving
written notice to Buyer or the Company (the "Redemption Notice"), The
effective date of any such election by a Shareholder shall be July 31,
2001.
1.7.3.3 Payment. The Redemption Price payable under Subsection
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1.7.3.1 shall be payable in cash on January 10, 2006. The purchase price
payable under Subsection 1.7.3.2 shall be payable in cash within 10 days
after the receipt by Buyer or the Company (the earlier, if an different
days) of a Shareholder's Redemption Notice. if such payment would be
prohibited under the Buyer's senior credit agreement or California law, '
such payment shall be made as soon as permitted - thereunder and shall bear
interest during the
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deferral at the rate of St per annum, but in no event shall such payment be
made later than December 1, 2001.
1.7.4 Purchase on a Sale. The closing of a sale (a "Stock
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Sale") of greater than 50% of the outstanding common stock and common stock
equivalents (on a fully diluted basis) in the Company or Buyer (or any
affiliate of Buyer which includes an part of its consolidated operations
the business of the Company (a "Sale Affiliate")) and the sale (an "Asset
Sale") of all or substantially all of the assets of the Company, Buyer or
Sale Affiliate, are referred to herein together as a "Sale". If a Sale
occurs prior to Buyer's purchase of the Continuing Shares in accordance
with any of the other provisions herein, effective an of the closing date
with respect to such Sale, Buyer shall purchase the Continuing Shares for
the Redemption Price, which shall. be paid in cash at closing of the Sale.
1.7.5 Registered Public Offering. The closing of a
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registered initial public offering of common equity of the Company or Buyer
(or any affiliate of Buyer which includes as part of its consolidated
operations the business of the Company (an "Offering Affiliate") is
referred to herein as an "IPO". If an IPO occurs prior to Buyer's purchase
of the Continuing Shares in accordance with any of the foregoing, Buyer
shall purchase the continuing Shares for the Redemption Price, which shall
be paid in cash at closing of the IPO. Notwithstanding the foregoing, the
Selling Shareholders each understand that a purchase of the Continuing
Shares on the foregoing terms may substantially impact the feasibility or
economics of an IPO, when compared with an exchange of the Continuing
Shares for shares of the class subject of the IPO with an initial offering
price equal to the Redemption Price. Consequently, this amendment is made
subject to the condition that each Selling Shareholder acknowledge and
agree that (i) the Paying Agent (Douglas Campbell) is specifically
authorized and empowered in his sole discretion (and without any further
action on the part of any other Selling Shareholder) to agree to a further
amendment to the Agreement, an amended hereby, to provide that the
Continuing Shares be exchanged for shares of the issuer in an IPO having an
aggregate initial public offering price not less than the Redemption Price,
and (ii) such Selling Shareholder understands that any shares received by
the Selling Shareholder at the time of an IPO may not be freely tradeable
and that Selling Shareholder may be required to hold such shares for 24
months or more following the IPO before they are eligible to be sold by
Selling Shareholder without registration thereof pursuant to applicable
federal and state securities laws. Each Selling Shareholder specifically
acknowledges that it understands and agrees to the foregoing and, further,
that Paying Agent, as attorney-in-fact of each Selling Shareholder pursuant
to the terms of the Paying Agent Agreement (as defined in the 1995
Agreement) is specifically authorized as Attorney-in-Fact for each selling
Shareholder pursuant to the provisions of the Paying Agent Agreement,
including Section 5.9 thereof, and this amendment to agree to any such
further amendment to the Agreement in the name of and for and on behalf of
Selling Shareholder.
1.7.6 Right of Review. [Intentionally Deleted]
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1.7.7 Liquidity Event. Each of the Company's purchase of the
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Continuing Shares as a result of a Sale or an IPO, and the Early Redemption
shall be a "Liquidity Event" under the Agreement.
1.7.8 Further Amendments. Notwithstanding any other
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provision of this Agreement, if any subsequent amendment or amendments to
this Agreement are proposed and Parent, Buyer and Selling Shareholders
holding not less than 90% of the Continuing Shares agree thereto by
execution of a writing setting forth such amendment, such amendment shall
be binding on all of the parties hereto, including all Selling
Shareholders, whether or not they specifically consent thereto or execute
the writing setting forth the amendment. Each Selling Shareholder
acknowledges and agrees that the Selling Shareholders, interests are
substantially aligned and that requiring each Selling Shareholder to
specifically approve an amendment is cumbersome and may adversely impact
the interests of the Selling Shareholders as a group."
3. Share Sale Adjustment. The provisions of Section 1.7.2 of the
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Agreement providing for the possible forfeiture of one-half of the Continuing
Shares (referred to in the Agreement as the Escrowed Continuing Shares) are, by
the foregoing restatement of Section 1.7, modified and restated to eliminate
such possible forfeiture. The Escrowed Continuing Shares, are therefore
released from the escrow for the Share Sale Adjustment provided for in Section
1.7.2 of the 1995 Agreement and the Share Escrow Holder is authorized and
directed in accordance with Section 7.1 of the Paying Agent Agreement to release
and deliver such Escrowed continuing Shares and the Escrowed Stock Powers to the
Shareholder Representative to hold such Continuing Shares and Escrowed Stock
Powers as provided in the Paying Agent Agreement. The instruction to the Share
Escrow Holder herein shall for all purposes be a joint Certification of Buyer
and Shareholder Representative to Share Escrow Holder, as contemplated under
Section 1.7.2.1 of the 1995 Agreement, and the Share Escrow Holder is, on
release and delivery of the Escrowed Continuing Shares as provided above,
released and discharged of any claim or liability relating to or arising cut of
Share Escrow Holder's acting as such under the Agreement.
4. Anti-dilution. Section 7.3 of the 1995 Agreement is hereby deleted
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and shall be of no further force or effect.
5. Indemnity. Parent and Buyer, jointly and severally, agree to
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indemnify Shareholder Representative (in any and all capacities) , to the
fullest extent possible under law, for any and all claims, demands, losses,
costs, charges, expenses, obligations, liabilities, actions, suits, damages,
judgments' and deficiencies, including interest and penalties, reasonable
counsels, fees and costs and all reasonable amounts paid in furtherance of the
transactions contemplated herein or in settlement of any claim, action or suit
collectively referred to as "Claims") which may be sustained by Shareholder
Representative, arising out of or by reason of this Amendment and the
modifications to the Agreement contained herein or the preparation or
distribution of documents, instruments and materials necessary for the
consummation of this Amendment or the solicitation of the agreement of the
Selling Shareholders to this Amendment or the transactions contemplated hereby;
provided, however, that neither Parent nor Buyer, nor any affiliate of either,
shall indemnify Shareholder Representative or the Selling Shareholders, or any
of their affiliates, for any Claims relating to
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"taxes" as such is used in the 1995 Agreement. Parent and Buyer, jointly and
severally, agree to indemnify Shareholder Representative (in any and all
capacities), to the fullest extent possible under law, for any and all expenses
incurred by Shareholder Representative in implementing the modifications to the
Agreement contemplated herein and representing the interests of the Selling
Shareholders in connection therewith, such as legal fees and expenses incurred
in connection herewith.
6. Miscellaneous.
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6.1 Notices. The address of Parent for notices shall he as set
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forth in the First Amendment.
6.2 Counterparts. This Amendment shall be executed in two or
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more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6.3 Continuation of Agreement. Except as specifically modified
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hereby, all provisions of the Agreement shall remain unaltered and in full
force and effect. From and after the date hereof, any reference in the
Agreement (and in any agreement referred to or contemplated in the
Agreement) to the Agreement and concerning a time from and after the date
hereof shall he deemed to be a reference to the Agreement as amended
hereby.
6.4 Entire Agreement. This Amendment embodies the entire
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agreement and understanding between the parties hereto with respect to the
modification of the Agreement and supersedes all prior negotiations,
understandings and agreements between the parties with respect thereto.
6.5 Defined Terms. All capitalized terms used in this Amendment
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without definition shall have the same meaning herein as when defined in
the 1995 Agreement. "GAAP" as used in the Agreement shall have the same
meaning therein as when defined in the 1995 Agreement, notwithstanding the
restatement herein.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to Stock Subscription and Purchase Agreement to be duly executed.
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CII TECHNOLOGIES INC.
Attest _____________________ By ____________________________________
Ramzi A. Dabbagh,
Its Chief Executive Officer
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COMMUNICATIONS INSTRUMENTS, INC.
Dated: _____________, 1997 By ____________________________________
Ramzi A. Dabbagh,
Its President
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KILOVAC CORPORATION
Dated: _____________, 1997 By ____________________________________
Douglas Campbell,
Its President
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SELLING SHAREHOLDERS
Dated: ____________, 1997 _______________________________________
DOUGLAS L. CAMPBELL, Trustee of the
KILOVAC CORPORATION EMPLOYEE STOCK
BONUS PLAN
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Dated: ____________, 1997 _______________________________________
DOUGLAS L. CAMPBELL, as Trustee of the
CAMPBELL CHARITABLE REMAINDER UNITRUST
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Dated: ____________, 1997 _______________________________________
MILO FILIP, as Trustee of the ERIN
CAMPBELL TRUST
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_______________________________________
Dated: ___________, 1997 DOUGLAS L. CAMPBELL
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Dated: ___________, 1997 _______________________________________
RONALD D. KLINGENSMITH, as Trustee of
the DONALD C. CAMPBELL CHARITABLE
UNITRUST
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Dated: ____________, 1997 _______________________________________
PAT MCPHERSON
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Dated: ____________, 1997 _______________________________________
ROBERT HELMAN
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Dated: ____________, 1997 _______________________________________
DAN MCALLISTER
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Dated: ____________, 1997 _______________________________________
RICK DANCHUK
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Dated: ____________, 1997 _______________________________________
HARRY JABAGCHOURIAN
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Dated: ____________, 1997 _______________________________________
JOHN STEWART
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Dated: ____________, 1997 _______________________________________
RICK STEEN
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Dated: ____________, 1997 _______________________________________
SUSAN-CLAIRE ANDERSON REID
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Dated: ____________, 1997 _______________________________________
ROBIN HAMILTON
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Dated: ____________, 1997 _______________________________________
GARY CLANCY
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Dated: ____________, 1997 _______________________________________
HUGH VOS
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Dated: ____________, 1997 _______________________________________
NORM BLANKENSHIP
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Dated: ____________, 1997 _______________________________________
LYNN DANCHUK
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