Exhibit 4.1
INDEMNIFICATION AND RELEASE AGREEMENT
This Agreement ("Agreement"), dated January 22, 2003, is entered into by
and among White Electronic Designs Corporation, an Indiana corporation
("Acquiror") and all of the outstanding shareholders of Interface Data Systems,
Inc., an Arizona corporation (the "Company"), as listed on the signature page
hereof ("Shareholders").
WITNESSETH:
WHEREAS, simultaneously with the execution of this Agreement, IDS
Reorganization Corp., a wholly-owned subsidiary of Acquiror ("Merger Sub"), is
being merged with and into the Company (the "Merger"), pursuant to that certain
Agreement and Plan of Reorganization dated as of January 22, 2003 (the "Merger
Agreement," the terms defined therein being used herein as therein defined), by
and among Acquiror, Merger Sub, and the Company; and
WHEREAS, the execution of this Agreement is a condition to the obligations
of the Acquiror and Company to close the Merger Agreement;
NOW, THEREFORE, in consideration for the cash and Acquiror common stock to
be received by the Shareholders pursuant to the Merger Agreement, and the mutual
covenants and conditions contained herein, Acquiror and the Shareholders agree
as follows:
ARTICLE I
INDEMNIFICATION
1. Indemnification by Shareholders. Each of the Shareholders, jointly
and severally, covenants and agrees to defend, indemnify and hold harmless the
Company, Merger Sub, and Acquiror, and their respective officers, directors,
employees, agents, advisers, representatives and Affiliates (collectively, the
"Acquiror Indemnitees") from and against, and to pay or reimburse Acquiror
Indemnitees for, any and all claims, liabilities, obligations, losses, fines,
costs, royalties, proceedings, deficiencies or damages (whether absolute,
accrued, conditional, or otherwise and whether or not resulting from third party
claims) including, without limitation, any out-of-pocket expenses and reasonable
attorneys' and accountants' fees incurred in the investigation or defense of any
of the same or in asserting any of their respective rights hereunder, but not
including any claims, damages, or losses relating to consequential damages or
lost profits, except for third party claims for such damages payable by such
Acquiror Indemnitees which shall be recoverable (collectively, "Losses"),
resulting from or arising out of:
(a) any inaccuracy of any representation or warranty made by the
Company in the Merger Agreement or in connection therewith (it being understood
and agreed that, notwithstanding anything to the contrary contained in this
Agreement, to determine the losses arising from such inaccuracy or breach, such
representation or warranty shall be read as if it were not qualified by
materiality, including, without limitation, qualifications indicating accuracy
in all material respects, or accuracy except to the extent the inaccuracy will
not have a Material Adverse Effect);
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(b) any inaccuracy or breach of any representation, warranty, or
covenant made by any Shareholder pursuant to this Agreement or in connection
therewith;
(c) any failure of the Company to perform any covenant or
agreement set forth in the Merger Agreement or in connection therewith;
(d) all liabilities relating to a violation of any Applicable Law;
and
(e) any claims by holders of Company Common Stock or Convertible
Securities relating to the allocation of the Cash Payment, the Acquiror Common
Stock Payment, the Exchange Ratio, the vesting or non-vesting of any such
holder's Convertible Securities, or any other claim relating to or in connection
with this Agreement or the Merger Agreement.
Acquiror Indemnitees shall be entitled to indemnification pursuant to this
Agreement only if the aggregate Losses incurred or sustained by all Acquiror
Indemnitees exceed One Hundred Thousand Dollars ($100,000). In the event that
the aggregate Losses incurred or sustained by all Acquiror Indemnitees exceed
One Hundred Thousand Dollars ($100,000), then the Acquiror Indemnitees shall be
entitled to indemnification for all such Losses, including the first One Hundred
Thousand Dollars ($100,000) of such Losses; provided, however, that (i) the
aggregate Losses paid to the Acquiror Indemnitees hereunder shall not exceed the
Escrowed Shares; and (ii) Acquiror's sole remedy with respect to the
Shareholder's indemnification responsibilities pursuant to this Agreement for
any and all Losses shall be limited to Acquiror's right of setoff with respect
to the Escrowed Shares as provided in Article I, Section 2 of this Agreement.
Notwithstanding the foregoing, or anything else in this Agreement, the Acquiror
Indemnitees shall be entitled to indemnification for all Losses, without any
limitation, incurred or sustained by such Acquiror Indemnitee as a result of any
instance involving fraud, misrepresentations, or other similar claims, or
breaches of the representations set forth in Sections 3.4 and 3.18 of the Merger
Agreement or for unpaid Taxes for which adequate amounts have not been reserved
by the Company through the Effective Date of the Merger.
2. Acquiror's Right of Setoff. Pursuant to Section 2.6 of the Merger
Agreement, at the Closing, Acquiror and the Company shall enter into the Escrow
Agreement, and Acquiror shall deliver the Escrowed Shares to the escrow agent,
to be held pursuant to the terms of the Escrow Agreement. The Shareholders'
agree that the Acquiror shall setoff against the Escrowed Shares any Losses for
which the Shareholders may be responsible pursuant to this Agreement. This right
of setoff shall be Acquiror's sole remedy with respect to any and all claims
relating to, or arising out of, this Agreement, except for claims relating to
fraud, misrepresentations, or other similar claims, or breaches of the
representations set forth in Sections 3.4 and 3.18 of the Merger Agreement.
3. Indemnification by Acquiror. Acquiror covenants and agrees to
defend, indemnify, and hold harmless the Shareholders and their respective
agents, advisors, representatives and Affiliates (collectively, the "Shareholder
Indemnitees") from and against any and all Losses resulting from or arising out
of:
(a) any material inaccuracy in any representation or warranty by
Acquiror made or contained in the Merger Agreement or in connection therewith;
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(b) any failure of Acquiror to perform any covenant or agreement
made or contained in the Merger Agreement or in connection therewith or to
fulfill any other obligation in respect thereof; and
(c) the operation of the Company following the Closing;
provided, however, that in the case of clause (b) or (c), Acquiror shall not be
obligated to indemnify the Shareholder Indemnitees to the extent such Losses are
attributable to acts or circumstances occurring prior to the Closing, or
constitute Losses for which the Shareholders are required to indemnify Acquiror
Indemnitees under this Agreement.
Shareholder Indemnitees shall be entitled to indemnification pursuant to this
Agreement only if the aggregate Losses incurred or sustained by all Shareholder
Indemnitees exceed One Hundred Thousand Dollars ($100,000). In the event that
the aggregate Losses incurred or sustained by all Shareholder Indemnitees exceed
One Hundred Thousand Dollars ($100,000), then the Shareholder Indemnitees shall
be entitled to indemnification for all such Losses, including the first One
Hundred Thousand Dollars ($100,000) of such Losses; provided, however, that the
aggregate Losses paid to the Shareholder Indemnitees hereunder shall not exceed
Four Million Five Hundred Thousand Dollars ($4,500,000).
4. Indemnification Procedures. In the case of any claim entitling a
party hereto to indemnification (the "Indemnified Party"), notice will be given
by the Indemnified Party to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and the Indemnified Party will
permit the Indemnifying Party (at the expense of such Indemnifying Party) to
assume the defense of any claim or any litigation resulting therefrom; provided
that (i) the counsel for the Indemnifying Party who shall conduct the defense of
such claim or litigation will be reasonably satisfactory to the Indemnified
Party, (ii) the Indemnified Party may participate in such defense at such
Indemnified Party's expense, and (iii) the omission by any Indemnified Party to
give notice as provided herein will not relieve the Indemnifying Party of its
indemnification obligation under this Agreement except to the extent that such
omission results in a failure of actual notice to the Indemnifying Party and
such Indemnifying Party is materially damaged as a result of such failure to
give notice. Except with the prior written consent of the Indemnified Party, no
Indemnifying Party, in the defense of any such claim or litigation, will consent
(unless it has been unsuccessful after having used all reasonable commercial
efforts to obtain such) to entry of any judgment or enter into any settlement
that provides for injunctive or other nonmonetary relief affecting the
Indemnified Party or that does not include as an unconditional term thereof the
giving by each claimant or plaintiff to such Indemnified Party of a release from
all liability with respect to such claim or litigation. In the event that the
Indemnified Party shall in good faith determine that the conduct of the defense
of any claim subject to indemnification thereunder or any proposed settlement of
any such claim by the Indemnifying Party would materially and adversely affect
the Indemnified Party's Tax liability or the ability of the Indemnified Party to
conduct its business, or that the Indemnified Party may have available to it one
or more defenses or counterclaims that are inconsistent with one or more of
those that may be available to the Indemnifying Party in respect of such claim
or any litigation relating thereto, the Indemnified Party will have the right at
all times to take over and assume control over the defense, settlement,
negotiations, or litigation relating to any such claim at the
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sole cost of the Indemnifying Party, provided that if the Indemnified Party does
so take over and assume control, the Indemnified Party will not settle such
claim or litigation without the written consent of the Indemnifying Party, such
consent not to be unreasonably withheld. In the event that the Indemnifying
Party does not accept the defense of any matter as above provided, the
Indemnified Party will have the full right to defend against any such claim or
demand and will be entitled to settle or agree to pay in full such claim or
demand. In any event, the Indemnifying Party and the Indemnified Party will
cooperate in the defense of any claim or litigation subject to this Section 4
and the records of each will be available to the other with respect to such
defense.
5. Treatment of Shareholders. For purposes of Article I of this
Agreement, the rights, duties, and obligations of the Shareholders (and their
respective successors and assigns) will be joint and several. Among the
Shareholders, the rights, duties, and obligations of the Shareholders shall be
determined pursuant to Article VI of this Agreement.
6. Survival of Indemnification Obligations. The indemnification
obligations contained in Article I of this Agreement will survive the Closing
for the longer of a period of (a) one (1) year or, (b) for indemnification
obligations related to or involving fraud, misrepresentations, or other similar
claims, or the representations contained in Sections 3.4 and 3.18 of the Merger
Agreement, the period of the applicable statute of limitations.
ARTICLE II
REPRESENTATIONS REGARDING ACQUIROR COMMON STOCK
Each Shareholder, individually, represents and warrants to Acquiror that:
1. Shareholder is acquiring the Acquiror Common Stock for such
Shareholder's own account, for investment and not with a view to distribution
thereof, and that such Acquiror Common Stock will not be sold or distributed in
violation of the Securities Act or applicable state law or the rules and
regulations under either. Each Shareholder understands that such Acquiror Common
Stock has not been registered under the Securities Act or applicable state
securities laws by reason of the reliance by Acquiror on an exemption from the
registration requirements of the Securities Act, and applicable state securities
laws, and that such securities must be held indefinitely unless a subsequent
disposition thereof is registered under the Securities Act and applicable state
laws or is exempt from registration. The financial condition of each Shareholder
is such that each Shareholder is able to bear all risks of holding such Acquiror
Common Stock for an indefinite period of time. Each Shareholder has been
afforded an opportunity to ask questions of and receive answers from Acquiror
and from persons authorized to act on its behalf concerning the terms and
conditions of the acquisition of such Acquiror Common Stock, and the opportunity
to obtain additional information to verify the accuracy of information otherwise
furnished by Acquiror hereunder. Each Shareholder has investigated the
acquisition of such Acquiror Common Stock to the extent that each Shareholder
deems necessary or desirable, and Acquiror has provided each Shareholder with
the assistance in connection therewith that each Shareholder requested. Each
Shareholder has such knowledge and experience in financial and business matters
that each Shareholder is capable of evaluating the merits and risks of the
acquisition of the Acquiror Common Stock and of making an informed investment
decision with respect thereto. Each Shareholder is an "accredited investor"
within the meaning of Rule 501 of Regulation D promulgated by the Commission.
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2. Shareholder acknowledges and agrees that the certificates for the
Acquiror Common Stock received by each Shareholder will be endorsed with the
following legend:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS AND MAY
NOT BE SOLD, TRANSFERRED, ASSIGNED, OFFERED, PLEDGED, OR OTHERWISE
DISTRIBUTED FOR VALUE UNLESS THERE IS AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND SUCH LAWS COVERING SUCH SECURITIES OR
WHITE ELECTRONIC DESIGNS CORPORATION RECEIVES AN OPINION OF COUNSEL
STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT, OFFER, PLEDGE, OR
OTHER DISTRIBUTION FOR VALUE IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND SUCH LAWS."
3. Shareholder and Acquiror acknowledge and agree that the legend
endorsed on the certificates for the Acquiror Common Stock will be removed, and
Acquiror will issue a certificate or instrument without such legend at the
request of the holder of such security, (a) if such security is being disposed
of pursuant to registration under the Securities Act and any applicable state
acts, or (b) if such holder provides Acquiror with an opinion of counsel
reasonably satisfactory to Acquiror to the effect that a sale, transfer,
assignment, pledge, or distribution for value of such security may be made
without registration and that such legend is not required to satisfy the
applicable exemption from registration.
ARTICLE III
REGISTRATION RIGHTS
1. Registration Procedures and Expenses. Acquiror will use its best
efforts to effect the registration under the Securities Act for resale of the
Acquiror Common Stock issued to the Shareholders pursuant to Section 2.5 of the
Merger Agreement, by performing the following:
(a) Acquiror shall, within 45 days following the date the Escrowed
Shares are issued to the Shareholders pursuant to Section 2.5(a)(ii) of the
Merger Agreement, prepare and file with the Commission a registration statement
with respect to the resale of (i) the Acquiror Common Stock issued to the
Shareholders pursuant to Sections 2.5(a)(ii) and (iii) of the Merger Agreement,
and (ii) the Acquiror Common Stock issuable upon exercise of the warrant assumed
by Acquiror pursuant to Section 2.5(b) of the Merger Agreement, by the
Shareholders on the Nasdaq National Market, and shall use its best efforts to
cause such registration statement to become and remain effective for the lesser
of a period of one (1) year or until Shareholders are free to resell such
Acquiror Common Stock without restriction or limitation pursuant to Rule 144(k)
of the Securities Act.
(b) Acquiror shall use its best efforts to prepare and file with
the Commission, within 45 days following the Closing, a registration statement
on Form S-8 with respect to the
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Acquiror Common Stock issuable upon exercise of the options assumed by Acquiror
in connection with the IDS Plan pursuant to Section 2.5(b) of the Merger
Agreement.
(c) Acquiror shall use its best efforts to register or qualify
such Acquiror Common Stock for sale in such states as the Shareholders shall
reasonably designate and to keep such registration or qualification in effect
for so long as the registration statement filed under the Securities Act remains
in effect.
(d) Acquiror shall prepare and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to update and keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the sale of all securities covered by such
registration statement. Notwithstanding anything else to the contrary contained
herein, neither Acquiror nor any of its Affiliates will be required to disclose
any confidential information concerning pending acquisitions not otherwise
required to be disclosed.
(e) Acquiror shall notify the Shareholders upon discovery that 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 the Shareholders promptly prepare and furnish to each of them a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that such prospectus will 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
light of the circumstances under which they were made; provided that, after such
notification and until such supplement or amendment has been so delivered, the
Shareholders will not deliver or otherwise use the original prospectus.
(f) Acquiror shall cause to be furnished to the Shareholders three
conformed copies of such registration statement and of each amendment and
supplement thereto (in each case including all exhibits) and such number of
copies of the preliminary and final prospectuses and any other prospectus filed
under Rule 424 of the Securities Act as the Shareholders may reasonably request
in order to facilitate the sale of such Acquiror Common Stock. The Shareholders
will comply with all prospectus delivery requirements under the Securities Act.
It will be a condition to Acquiror's obligations to effect registration of such
Acquiror Common Stock that the Shareholders provide Acquiror with all material
facts including, without limitation, furnishing such certificates and
questionnaires as may be required by Acquiror concerning the Acquiror Common
Stock to be registered which are reasonably required for Acquiror to complete
and file the registration statement or in the prospectus or are otherwise
required in connection with the offering.
(g) Acquiror will pay all expenses incurred by Acquiror or its
Affiliates in complying with this provision, including, without limitation, all
registration and filing fees, printing expenses, and fees and disbursements of
counsel for Acquiror and its Affiliates (the "Registration Expenses"). The
Shareholders shall pay for all selling commissions applicable to the sales of
the Acquiror Common Stock and all fees and disbursements of counsel for the
Shareholders (the "Selling Expenses").
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2. Indemnification.
(a) Acquiror will indemnify and hold harmless the Shareholders and
each person, if any, who controls a Shareholder within the meaning of the
Securities Act, for, from and against any and all losses, damages, liabilities,
costs and expenses to which the Shareholders or any such controlling person may
become subject under the Securities Act, any state securities laws, or
otherwise, insofar as such losses, claims, damages, liabilities, costs or
expenses are caused by a failure to comply with such laws or by any untrue
statement or alleged untrue statement of any material fact contained in a
registration statement under which shares of Acquiror Common Stock are
registered, any prospectus contained therein or any amendment or supplement
thereto, or arise out of or 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, in light of the circumstances under which they were made,
not misleading; provided, however, that, Acquiror will not be liable in any such
case to the extent that any such loss, claim, damage, liability, cost or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission so made in conformity with information furnished
by or on behalf of any Shareholder or such controlling person in writing
specifically for use in the preparation thereof.
(b) Each of the Shareholders, jointly and severally, will
indemnify and hold harmless Acquiror and each person, if any, who controls
Acquiror within the meaning of the Securities Act, from and against any and all
losses, damages, liabilities, costs and expenses to which Acquiror or any such
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, damages, liabilities, costs or expenses are caused by
any untrue statement or alleged untrue statement of any material fact contained
in a registration statement under which shares of Acquiror Common Stock are
registered, any prospectus contained therein or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein, in light of the circumstances under which they were made, not
misleading, to the extent that such untrue statement or alleged untrue statement
or omission or alleged omission was so made in reliance upon and in strict
conformity with written information furnished by or on behalf of any Shareholder
specifically for use in the preparation thereof.
(c) Promptly after receipt by an indemnified party pursuant to the
provisions of paragraphs (a) and (b) of this provision of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim thereof is to be
made against the indemnifying party pursuant to the provisions of said
paragraphs (a) and (b), promptly notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying party will
not relieve it from any liability which it may have hereunder unless the
indemnifying party has been materially prejudiced thereby nor will such failure
to so notify the indemnifying party relieve it from any liability which it may
have to any indemnified party otherwise than hereunder. In case such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party shall have the right to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, if the
defendants in any action include both the indemnified party and the indemnifying
party and the indemnified parties have defenses or may have defenses additional
to or different than the indemnifying parties, or
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there is a conflict of interest which would prevent counsel for the indemnifying
party from also representing the indemnified party, the indemnified party or
parties shall have the right to select separate counsel to participate in the
defense of such action on behalf of such indemnified party or parties. After
notice from the indemnifying party to such indemnified party will not be liable
to such indemnified party pursuant to the provisions of said paragraph (a) or
(b) for any legal or other expense subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnified party shall have employed counsel in
accordance with the provisions of the preceding sentence, (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after the notice of the
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party.
ARTICLE IV
RELEASE
Each Shareholder hereby irrevocably waives and releases all known and
unknown claims such Shareholder may have against the Acquiror and the Company,
or any present and former directors, officers, agents, and employees of the
Acquiror or Company, from any and all actions, claims, causes of action, or
liabilities of any nature, in law or equity, known or unknown, and whether or
not heretofore asserted, which such Shareholder ever had, now has, or hereafter
can, will or may have against any of the foregoing, upon or by reason of any
matter, cause, or thing whatsoever from the formation of the Acquiror or Company
to the Closing, except for those claims specifically related to or arising out
of this Agreement or the Merger Agreement.
ARTICLE V
SHAREHOLDER REPRESENTATIVES
1. Shareholder Representatives. The Shareholders irrevocably make,
constitute and appoint Mahasen Samaravijaya and David Johnson, and each of them,
as their agent and attorney-in-fact (each a "Shareholder Representative") to
execute any and all documents on behalf of the Shareholders relating to, or
arising out of, this Agreement and the Merger Agreement, including the Escrow
Agreement, and authorize and empower each of them to fulfill the role of
Shareholder Representative in connection with this Agreement.
2. Duties. The Shareholder Representatives shall:
(a) receive all notices and communications directed to the
Shareholders under this Agreement and forward such notices and communications to
all Shareholders within four days of receipt by a Shareholder Representative;
(b) within seven days of forwarding such notices and
communications by a Shareholder Representative, all Shareholders shall meet in
person or by conference telephone, electronic video screen communication, or
similar communication equipment (so long as all Shareholders participating in
the meeting can hear one another), to determine what actions the Shareholders
should or should not take in response to such notice or communications;
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(c) ensure that all such decisions (whether to act or not act) be
memorialized in writing by the Shareholders;
(d) take any action (or take no action) as a Shareholder
Representative is directed to do pursuant only to a written consent of a
majority in interest of the Shareholders to take (or not take) such action; and
(e) act in good faith and exercise the same degree of duty and
care in performing its duties and obligations hereunder as is exercised by other
entities under similar circumstances.
3. Reliance. Acquiror shall be entitled to rely on any document
executed by a Shareholder Representative on behalf of the Shareholders with
respect to any and all matters arising out of, or relating to, this Agreement.
4. Liability. The Shareholder Representatives shall not be liable to
the Shareholders for their performance under this Agreement except for a
Shareholder Representative's own negligent action, failure to act in good faith,
or willful misconduct. In the absence of bad faith on the part of a Shareholder
Representative, the Shareholder Representative may conclusively rely, as to the
truth of the statements expressed therein, upon any documents furnished to the
Shareholder Representative and conforming to the requirements of this Agreement
and the Shareholder Representative may rely and shall be protected in acting
upon any document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
5. Compensation: The Shareholder Representatives will not be
compensated for the performance of their services under this Agreement.
ARTICLE VI
CONTRIBUTION AGREEMENT
Any and all the rights, duties, and obligations of the Shareholders
resulting from this Agreement shall be shared among the Shareholders pro rata in
accordance with each Shareholder's ownership of Company Common Stock as
disclosed in Schedule 3.4 to the Merger Agreement. In the event that any
Shareholder is insolvent or otherwise unable to contribute their share of any
rights, duties, and obligations at the time any such obligation arises, the
obligation shall be shared by the remaining Shareholders pro rata and a right of
contribution reserved against the insolvent Shareholder or Shareholders.
ARTICLE VII
FEES AND EXPENSES
Except for Acquiror's obligation to pay for expenses incurred by the
Company pursuant to Section 2.5(d) of the Merger Agreement, the Shareholders
will bear all expenses, costs, and fees (including attorneys', auditors' and
financing commitment fees) incurred by the Company and the Shareholders in
connection with the transactions contemplated in connection with this Agreement,
the Merger Agreement, and all related agreements, including the preparation,
execution, and delivery of such agreements and compliance therewith.
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ARTICLE VIII
MISCELLANEOUS
1. Assignment. Neither the Shareholders, individually or jointly, nor
the Acquiror shall have the right or ability to assign or transfer any
obligations under this Agreement without the written consent of the other. Any
attempt to do so shall be void.
2. Governing Law. This Agreement shall be governed by the laws of the
State of Arizona and the parties hereby submit to the jurisdiction of the
Arizona courts, both state and federal.
3. Notice. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day delivery to a domestic
address by recognized overnight delivery service (e.g., Federal Express); and
upon receipt, if sent by certified or registered mail, return receipt requested.
In each case notice shall be sent to:
If to the Shareholders:
Mahasen Samaravijaya
6545 N. 29th St.
Phoenix, Arizona 85016
David Johnson
3200 E. Camelback Road, Suite 100
Phoenix, Arizona 85018
Telephone: (602) 954-3745
Facsimile: (602) 954-0510
with a copy to:
Greenberg Traurig, LLP
2375 E. Camelback Road, Suite 700
Phoenix, Arizona 85016
Attn: Quinn P. Williams
Tel: (602) 445-8000
Fax: (602) 445-8100
If to Acquiror:
White Electric Designs Corporation
3601 East University Drive
Phoenix, Arizona 85034
Attn: Hamid Shokrgozar, Chief Executive Officer
Telephone: (602) 437-1520
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Facsimile: (602) 437-0556
with a copy to:
Snell & Wilmer, L.L.P.
One Arizona Center
Phoenix, Arizona 85004-2202
Attn: Samuel C. Cowley, Esq.
Telephone: (602) 382-6000
Facsimile: (602) 382-6070
4. Dispute Resolution. Any and all disputes arising out of or relating
to this Agreement shall be handled in accordance with the procedures set forth
in Section 12.7 of the Merger Agreement.
5. Amendments. No modification to this Agreement shall be effective
unless made in writing and duly executed by or on behalf of the Shareholder
Representative and the Acquiror.
6. Entire Agreement. This Agreement constitutes the entire Agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings between the parties (whether written or
oral) relating to said subject matter.
7. Counterparts. This Agreement may be executed in several
counterparts, each of which will be deemed an original and all of which will
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
WHITE ELECTRONIC DESIGNS CORPORATION:
By:___________________________________
Name:_________________________________
Title:________________________________
IDS CLASS A SHAREHOLDERS:
______________________________________ ______________________________________
Mahasen Samaravijaya Edith Arrowsmith (Blackstone)
______________________________________ ______________________________________
John C. Shaw James Atchinson
______________________________________ ______________________________________
Wayne Parkinson Catherine Lhost
______________________________________ ______________________________________
Barry Ebert Glenn Lhost
______________________________________ ______________________________________
A.F. Schaffer Ron D. Huston
______________________________________
Cynthia Barnes (Avery)
David T. Johnson P.D. Defined Atchison Living Trust dated 3-11-86
Contribution Plan and Trust Joe R. Atchison, Incumbent Trustee
By:___________________________________ By:___________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
IDS CLASS B SHAREHOLDER:
______________________________________
Jeannie Stearns