UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
BOONTON ELECTRONICS CORPORATION
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
099257107
(CUSIP Number)
Victor Tolan
G.E.M. USA, Inc.
c/o Metrix U.S.A.
231 E. Imperial #240
Fullerton, CA 92635
(714) 525-7595
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
October 21, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule
13G to report the acquisition which is the subject of this Schedule
13D, and is filing this schedule because of Rule 13d-1(b)(3) or
(4), check the following box / /.
Check the following box if a fee is being paid with the statement
/ /. (A fee is not required only if the reporting person: (1)
has a previous statement on file reporting beneficial ownership of
more than five percent of the class of securities described in Item
1; and (2) has filed no amendment subsequent thereto reporting
beneficial ownership of five percent or less of such class). (See
Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should
be filed with the Commission. See Rule 13d-1(a) for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a
reporting person's initial filing on this form with respect to the
subject class of securities, and for any subsequent amendment
containing information which would alter disclosures provided in a
prior cover page.
Page 2 of 6 Pages
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 099257107
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
G.E.M. USA, Inc.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3. SEC USE ONLY
4. SOURCE OF FUNDS
WC
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED / /
PURSUANT TO ITEMS 2(d) or 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7. SOLE VOTING POWER
SHARES 260,300
BENEFICIALLY -----------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH REPORTING Reference is hereby made to Article V of the
PERSON WITH Shareholder's and Voting Agreement dated
October 21, 1996 attached as Exhibit B.
------------------------------------------
9. SOLE DISPOSITIVE POWER
260,300
------------------------------------------
10. SHARED DISPOSITIVE POWER
N/A
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
260,300
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /
Page 3 of 6 Pages
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.905%
14. TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP NO. 099257107
OCTOBER 21, 1996
Item 1. Security and Issuer.
Common stock, par value $0.10 per share
Boonton Electronics Corporation
25 Eastmans Road
Parsippany, New Jersey 07054
Item 2. Identity and background.
(a) G.E.M. USA, Inc.
(b) c/o Metrix, S.A.
B.P. 330
74943 Annecy-le-Vieux Cedex
France
(c) N/A
(d) No
(e) No
(f) Delaware - U.S.A.
(a) General de Messure et de Maintenance
Electronique S.A.
(b) c/o Metrix, S.A.
B.P. 330
74943 Annecy-le-Vieux Cedex
France
(c) N/A
(d) No
(e) No
(f) France
(a) Daniel Auzan
(b) 16 rue Joseph Cugnot
6000 Beauvais
France
(c) President of GEM and GMME
(d) No
(e) No
(f) France
Page 4 of 6 Pages
(a) Michel Boulanger
(b) 16 rue Joseph Cugnot
6000 Beauvais
France
(c) Secretary and Treasurer of GEM and CFO of GMME
(d) No
(e) No
(f) France
(a) Victor Tolan
(b) 231 E. Imperial Highway #250
Fullerton, CA 92635
(c) Vice President of GEM and Sales Director of GMME
(d) No
(e) No
(f) U.S.A.
Item 3. Source and Amount of Funds.
$200,000.00 in working capital of G.E.M. USA, Inc. from
the capital contribution of General de Messure et de
Maintenance Electronique, S.A.
Item 4. Purpose of Transaction.
The securities are being acquired for
investment purposes.
(a) G.E.M. USA, Inc. has an option to
purchase an additional 443,700 shares of
common stock in Boonton Electronics
Corporation and has a right of first
refusal to purchase (i) additional shares
of Boonton Electronics Corporation
pursuant to Section 4 of that certain
Subscription and Option Agreement dated
February 23, 1996 (filed with original
Schedule 13D), and (ii) the shares of
John M. Young, Ronald T. DeBlis and Jack
Frucht under certain circumstances.
Reference is hereby made to that certain
Subscription and Option Agreement dated
October 21, 1996 and the Shareholders'
and Voting Agreement dated as of October
21, 1996 attached hereto as Exhibits and
incorporated herein by reference.
(b) None.
(c) None.
Page 5 of 6 Pages
(d) Reference is hereby made to Article V of
the Shareholders' and Voting Agreement.
(e) Reference is hereby made to Article V of
the Shareholders' and Voting Agreement.
(f) Reference is hereby made to Article V of
the Shareholders' and Voting Agreement.
(g) Reference is hereby made to Article V of
the Shareholders' and Voting Agreement
and Section 4.3 of the Subscription and
Voting Agreement.
(h) None.
(i) None.
(j) None.
Item 5. Interest in Securities of the Issuer.
(a) 260,300 shares of common stock owned by
G.E.M. USA, Inc., representing
approximately 15.905% of the outstanding
stock of Boonton Electronics Corporation,
with the option to acquire an additional
443,700 shares of common stock
representing, after the issuance
thereof,approximately 33.84% of the
outstanding stock of Boonton Electronics
Corporation.
(b) 260,300 direct.
Reference is hereby also made to Article
V of the Shareholders' and Voting
Agreement.
(c) None.
(d) Reference is hereby made to Article V of
the Shareholders' and Voting Agreement.
(e) N/A.
Item 6. Contracts, Agreements, Understandings, etc.
Reference is hereby made to (i) the
Subscription and Option Agreement dated
February 23, 1996 (a copy of which was filed
with the original Schedule 13D), (ii) the
Subscription and Option Agreement dated
Page 6 of 6 Pages
October 21, 1996 attached hereto as Exhibit A,
and (iii) the Shareholders' and Voting
Agreement dated October 21, 1996 attached
hereto as Exhibit B.
Item 7. Exhibits.
(a) Subscription and Option Agreement dated
October 21, 1996 by and between Boonton
Electronics Corporation and G.E.M. USA,
Inc.
(b) Shareholders' and Voting Agreement dated
as of October 21, 1996 by and among
G.E.M. USA, Inc., Ronald T. DeBlis, Jack
Frucht, John Young and Boonton
Electronics Corporation.
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement
is true, complete and correct.
G.E.M. USA, Inc.
By: /s/ Daniel Auzan
----------------------
Daniel Auzan, President
DATED: October 21, 1996
______________________________________________
______________________________________________
SUBSCRIPTION AND OPTION AGREEMENT
between
G.E.M. USA, INC.
and
BOONTON ELECTRONICS CORPORATION
DATED: October 21, 1996
______________________________________________
______________________________________________
TABLE OF CONTENTS
1. SUBSCRIPTION FOR COMMON SHARES. . . . . . . . . . . . . .
1.1 Subscription. . . . . . . . . . . . . . . . . . . . .
1.2 Subscription Price. . . . . . . . . . . . . . . . . .
1.3 Payment of Subscription Price . . . . . . . . . . . .
1.4 Certificates for Common Shares. . . . . . . . . . . .
2. OPTION. . . . . . . . . . . . . . . . . . . . . . . . . .
2.1 Option . . . . . . . . . . . . . . . . . . . . . . .
2.2 Option Period. . . . . . . . . . . . . . . . . . . .
2.3 Exercise of Option . . . . . . . . . . . . . . . . .
2.4 Option Price . . . . . . . . . . . . . . . . . . . .
2.5 Certificates for Option Shares . . . . . . . . . . .
2.6 Assignability of Option. . . . . . . . . . . . . . .
3. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . .
3.1 Representations and Warranties of the Company. . . .
3.2 Representations and Warranties of Buyer. . . . . . .
3.3 Survival of Representations and Warranties and
Covenants. . . . . . . . . . . . . . . . . . . . . .
4. CLOSING REQUIREMENTS. . . . . . . . . . . . . . . . . . .
4.1 The Company's Deliverables . . . . . . . . . . . . .
4.2 Buyer's Deliverables . . . . . . . . . . . . . . . .
4.3 The Company's Post-Execution Deliverables. . . . . .
5. FIRST SUBSCRIPTION AGREEMENT. . . . . . . . . . . . . . .
6. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . .
6.1 Indemnification by the Company . . . . . . . . . . .
6.2 Indemnification by Buyer . . . . . . . . . . . . . .
7. FURTHER ASSURANCES. . . . . . . . . . . . . . . . . . . .
8. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . .
9. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . .
9.1 Entire Agreement . . . . . . . . . . . . . . . . . .
9.2 Binding Effect . . . . . . . . . . . . . . . . . . .
9.3 Headings . . . . . . . . . . . . . . . . . . . . . .
9.4 Counterparts . . . . . . . . . . . . . . . . . . . .
9.5 Assignment . . . . . . . . . . . . . . . . . . . . .
9.6 Fees and Expenses/Brokers. . . . . . . . . . . . . .
9.7 Applicable Law . . . . . . . . . . . . . . . . . . .
SUBSCRIPTION AND OPTION AGREEMENT
THIS AGREEMENT made this 21st day of October, 1996 by and
between BOONTON ELECTRONICS CORPORATION, a company incorporated
under the laws of the State of New Jersey, U.S.A. whose principal
business address is at 25 Eastmans Road, Parsippany, New Jersey
07054, United States of America (the "Company") and G.E.M. USA,
INC., a company incorporated under the laws of Delaware whose
principal business address is at General de Mesure et de
Maintenance Electronique, S.A., c/o Metrix S.A., Parc des Glaisins,
6, avenue du Pre' Challes, B.P. 330, 74943 Annecy-le-Vieux Cedex,
France ("Buyer").
WITNESSETH:
WHEREAS, the Company and Buyer entered into that certain
Subscription and Option Agreement dated as of February 23, 1996, as
amended on June 24, 1996 and July 15, 1996 (true copies of which
are attached hereto as Exhibit A and are hereinafter collectively
referred to as the "First Subscription Agreement") pursuant to
which (i) Buyer agreed to purchase 180,300 shares of Common Stock
in the Company representing, when issued, approximately 11.836% of
all the issued and outstanding shares of capital stock in the
Company (the "Treasury Shares"), and (ii) the Company granted to
Buyer, among other things, an option to acquire an additional
523,700 shares of Common Stock in the Company (the "First Option")
within the earlier to occur of (i) 30 days following written notice
by the Company to Buyer of the issuance to the Company of a final
Administrative Consent Order by the New Jersey Department of
Environmental Protection ("DEP") setting forth the terms of a
comprehensive environmental cleanup and/or remediation plan for the
Company's former leasehold facility located at Pomeroy Road in
Parsippany, New Jersey (the "Property") in form and substance
acceptable to Buyer in its sole and absolute discretion, or (ii)
August 15, 1996 (the "First Option Period"); and
WHEREAS, Buyer did not exercise the First Option prior to
the expiration of the First Option Period for the reasons stated to
the Company in the letter from Buyer's counsel dated August 13,
1996, to the effect that Buyer was not satisfied with the proposed
remediation procedures to be adopted by the Company with respect to
the Property as contained in that certain Memorandum of Agreement
dated March 31, 1995, with proposed amendments thereto through
August, 1996, by and between the Company and the DEP; and
WHEREAS, the Company desires to sell to Buyer (pursuant
to authority from the Company's Board of Directors previously given
pursuant to a resolution adopted in accordance with Section 8 of
the First Subscription Agreement) the number of shares of Common
Stock in the Company contained under the First Option free and
clear of all liens, encumbrances, security interests, title defects
and restrictions, and Buyer is willing to subscribe for and/or
acquire an option to subscribe for such shares of Common Stock in
the Company which, when fully issued, together with Buyer's prior
acquisition of the Treasury Shares, would represent approximately
34.2% of all the issued and outstanding shares of Common Stock in
the Company, pursuant to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and
mutual covenants hereinafter contained, the parties hereto agree as
follows:
1. SUBSCRIPTION FOR COMMON SHARES.
1.1 Subscription. Subject to the terms and conditions of
this Agreement, Buyer hereby subscribes for Eighty Thousand
(80,000) shares of Common Stock in the Company (the "Common
Shares"), free and clear of all liens, encumbrances, security
interests, title defects and restrictions.
1.2 Subscription Price. The subscription price for the
Common Shares shall be Two and 50/100 ($2.50) U.S. Dollars per
Common Share (the "Subscription Price").
1.3 Payment of Subscription Price. Buyer hereby agrees to
pay the Subscription Price to the Company on or prior to ________,
1996, provided, however, that the Company shall have satisfied each
of the conditions set forth in Section 4.3 of this Agreement to the
satisfaction of Buyer. The Subscription Price shall be paid in
immediately available funds by wire transfer or cable to the
account of the Company in the manner designated by the Company on
the date on which the Company has satisfied each of the conditions
set forth in Section 4.3 of this Agreement to the satisfaction of
Buyer.
1.4 Certificates for Common Shares. Upon its receipt of the
Subscription Price, the Company shall immediately cause to be
issued and delivered to Buyer a certificate evidencing Buyer's
ownership interest in and title to the Common Shares on the form of
certificate approved by the Company, duly endorsed in blank,
together with proof that Buyer's name and its ownership of the
Common Shares has been added to the Company's Stock Register and
Stock Transfer Ledger.
2. OPTION.
2.1 Option. In consideration of One ($1.00) Dollar and other
good and valuable consideration, the receipt of which is hereby
acknowledged, the Company hereby grants to Buyer the exclusive
right and option (the "Option") during the Option Period, as that
term is defined in Section 2.2 below, to subscribe for up to Four
Hundred Forty Three Thousand Seven Hundred (443,700) shares of
Common Stock in the Company (the "Option Shares") free and clear of
all liens, encumbrances, security interests, title defects and
restrictions, against payment therefor of the Option Price as
provided in Section 2.4 below.
2.2 Option Period. The Option may be exercised by Buyer at
any time from and after the execution of this Agreement through and
including April 21, 1997 (the "Option Period").
2.3 Exercise of Option. The Option may be exercised by Buyer
at any time during the Option Period by written notice to the
Company no later than 5:00 p.m. Eastern Standard Time on the last
day of the Option Period (the "Option Notice"). The Option Notice
shall set forth Buyer's binding subscription for the Option Shares,
free and clear of all liens, encumbrances, security interest, title
defects and restrictions and subject to all of the terms and
conditions of this Agreement, it being the intention of the parties
hereto that the Company's representations, warranties, covenants
and indemnifications provided herein to Buyer shall extend to
Buyer's subscription for the Option Shares as if such
representations, warranties, covenants and indemnifications had
been made by the Company to Buyer upon Buyer's exercise of the
Option.
2.4 Option Price. On the timely exercise of the Option by
Buyer, Buyer agrees to pay the Company Three and 24/100 ($3.24)
U.S. Dollars per Option Share (the "Option Price") in immediately
available funds by wire transfer or cable to the account of the
Company in the manner designated by the Company.
2.5 Certificates for Option Shares. Upon its receipt of the
Option Price the Company shall immediately cause to be issued and
delivered to Buyer certificates evidencing Buyer's ownership
interest in and title to the Option Shares on the form of
certificate approved by the Company, duly endorsed in blank,
together with proof that Buyer's name and ownership of the Option
Shares has been added to the Company's Stock Register and Stock
Transfer Ledger.
2.6 Assignability of Option. The Option is non-assignable,
and any attempted assignment of the Option by Buyer is void and
shall cause the Option to terminate automatically without notice.
3. REPRESENTATIONS AND WARRANTIES.
3.1 Representations and Warranties of the Company. The
Company hereby reaffirms and restates to Buyer each and every
representation and warranty made by it in the First Subscription
Agreement to the same extent as if each such representation and
warranty was fully set forth at length herein, and as to each such
representation and warranty hereby confirms that each such
representation and warranty is true and accurate as of the date
hereof; other than with respect to the representations made in (i)
Section 5.1(c) of the First Subscription Agreement which is hereby
amended to reflect that as of the date hereof the total issued and
outstanding share capital of the Company consists of 1,636,585
common shares, and (ii) Section 5.1(i) of the First Subscription
Agreement.
3.2 Representations and Warranties of Buyer. Buyer hereby
reaffirms and restates to the Company each and every representation
and warranty made by it in the First Subscription Agreement to the
same extent as if each such representation and warranty was fully
set forth at length herein, and as to each such representation and
warranty hereby confirms that each such representation and warranty
is true and accurate as of the date hereof.
3.3 Survival of Representations and Warranties and Covenants.
Buyer and the Company agree that the representations, warranties
and covenants contained in this Agreement shall survive the
execution and delivery of this Agreement.
4. CLOSING REQUIREMENTS.
4.1 The Company's Deliverables. Upon the execution of this
Agreement by the parties hereto:
(A) The Company shall cause to be delivered to Buyer (a)
proper evidence demonstrating that Buyer's name has been included
in the Company's Stock Register and Stock Transfer Ledger, and (b)
certified true copies of the following documents duly executed and
approved for or on behalf of the Company:
(i) resolutions of the Company authorizing and
approving the terms of this Agreement, including, without
limitation, the issuance of the Common Shares to Buyer and
approving the terms of the Option, and that certain shareholder's
and voting agreement dated as of the date hereof by and between
Buyer, the Company and each of John M. Young, Ronald T. DeBlis and
Jack Frucht;
(ii) resolutions of the Company authorizing and
directing its appropriate officers to allot, transfer and deliver
the Common Shares (and Option Shares upon Buyer's exercise of the
Option) to Buyer and directing the Secretary to enter Buyer's name
and stock ownership on the records of the Company.
4.2 Buyer's Deliverables. Upon the execution of this
Agreement by the parties hereto, Buyer shall cause to be delivered
to the Company payment of the Subscription Price in the manner
provided by Section 1.3 of this Agreement together with a certified
true copy of resolutions duly adopted for and on behalf of Buyer
authorizing Buyer to enter into and perform this Agreement and the
shareholder's and voting agreement.
4.3 The Company's Post-Execution Deliverables. On or prior
to __________, 1996, or such later date as may be agreed to by
Buyer in writing, the Company shall cause to be delivered to Buyer
certificates evidencing the Common Shares, which shall be duly
endorsed in blank by the Company.
5. FIRST SUBSCRIPTION AGREEMENT.
Notwithstanding anything herein contained to the
contrary, the parties hereto acknowledge and agree that the
provisions contained in Section 4 and Section 8 of the First
Subscription Agreement are in full force and effect and that
nothing in this Agreement shall be construed as superseding any of
the terms or provisions contained therein.
6. INDEMNIFICATION.
6.1 Indemnification by the Company. The Company hereby
agrees to indemnify and hold harmless Buyer against and from any
and all claims, actions or causes of action, assessments, losses,
damages (including damages which are consequential in nature or are
related to unrealized or lost profits), liabilities, costs and
expenses, including without limitation reasonable attorneys' fees
and expenses, which the Buyer may suffer or incur resulting from,
related to or arising out of any breach of the representations,
warranties and covenants of the Company contained in this Agreement
or the nonfulfillment of any agreement on the part of the Company
contained in this Agreement.
6.2 Indemnification by Buyer. Buyer hereby agrees to
indemnify and hold harmless the Company against and from any and
all claims, actions or causes of action, assessments, losses,
damages (including damages which are consequential in nature or are
related to unrealized or lost profits) liabilities, costs and
expenses, including without limitation reasonable attorneys' fees
and expenses, which it may suffer or incur resulting from, relating
to or arising out of any breach of the representations, warranties
and covenants of Buyer contained in this Agreement or the
nonfulfillment of any agreement on the part of Buyer contained in
this Agreement.
7. FURTHER ASSURANCES. The parties hereto each agree to execute
such other documents, agreements or instruments as may be necessary
or desirable for the implementation of this Agreement and the
consummation of the transactions contemplated hereby.
8. NOTICES. Any notices or other communications required or
permitted hereunder, shall be sufficiently given if in writing and
delivered or sent by internationally recognized overnight express
courier service or by fax transmittal, as follows or to such other
address or fax transmittal number as the parties shall have given
notice of pursuant to the foregoing terms:
If to Buyer, to:
G.E.M. USA, Inc.
c/o Metrix S.A.
Metrix S.A.
6, avenue du Pre Challes - BP 330
74943 Annecy-le-Vieux Cedex
Attn: Daniel Auzan, President
Fax Number: 011 33 50 64 22 93
With a copy to:
Graham, Curtin & Sheridan
A Professional Association
4 Headquarters Plaza
P.O. Box 1991
Morristown, New Jersey 07962-1991, U.S.A.
Attn: Joseph M. Lamastra, Esq.
Fax Number: (201) 898-0107
If to the Company, to:
Boonton Electronics Corporation
25 Eastmans Road
Parsippany, New Jersey 07054, U.S.A.
Attn: President
Fax Number: (201) 386-9191
With a copy to:
Smith, Luhn,& Doran, P.C.
Courthouse Plaza
60 Washington Street
Morristown, NJ 07960
Attention: Gregory P. Luhn, Esq.
Fax Number: (201) 292-9168
9. MISCELLANEOUS.
9.1 Entire Agreement. This written document expresses the
entire agreement among the parties hereto and supersedes any prior
agreements or understandings concerning the subject of this Agree-
ment. No amendment shall be valid unless in writing and signed by
all parties.
9.2 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, representatives, successors and
assigns.
9.3 Headings. The section and other headings contained in
this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
9.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same
instrument.
9.5 Assignment. This Agreement shall not be assignable by
any party without the prior written consent of the other parties.
9.6 Fees and Expenses/Brokers. Each party to this Agreement
shall be responsible for and pay his/her own legal, accounting and
other costs and expenses incurred by them in connection with this
Agreement and the transactions contemplated thereby. The parties
hereby represent to each other that they have not entered into any
agreement or incurred any obligation, directly or indirectly, for
the payment of any broker's or finder's fee or commission in
connection with this Agreement and the transactions contemplated
thereby.
9.7 Applicable Law. This Agreement shall be governed by,
construed and enforced in accordance with the laws of the State of
New Jersey. Should any provision of this Agreement require
judicial interpretation, it is agreed that the court interpreting
or considering such provision shall not apply the presumption that
the terms hereof shall be more strictly construed against a party
by reason of the rule or conclusion that a document should be
construed more strictly against the party who itself or through its
agent prepares the same. It is agreed and stipulated that all
parties hereto have participated equally in the preparation of this
Agreement and that legal counsel was consulted by each party before
the execution of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Subscription and Option Agreement as of the day and year first
above written.
Company:
Attest: BOONTON ELECTRONICS CORPORATION
_____________________ By: /s/ Victor Tolan
------------------
VICTOR TOLAN
Buyer:
G.E.M. USA, INC.
______________________ By: /s/ Daniel Auzan
----------------------
Daniel Auzan, President
SHAREHOLDERS' AND VOTING AGREEMENT
THIS SHAREHOLDERS' AND VOTING AGREEMENT dated as of this
21st day of October, 1996 is made by and among G.E.M. USA, INC., a
company incorporated under the laws of Delaware whose business
address is at General de Mesure et de Maintenance Electronique,
S.A., c/o Metrix S.A., Parc des Glaisins, 6, avenue du Pre'
Challes, B.P. 330, 74943 Annecy-le-Vieux Cedex, France ("GEM"),
RONALD T. DeBLIS, an individual residing at 37 Farmstead Road,
Short Hills, New Jersey 07078, U.S.A. ("DeBlis"), JACK FRUCHT, an
individual residing at 380 Mountain Road, Apt. 512, Union City, New
Jersey 07087, U.S.A. ("Frucht"), JOHN M. YOUNG, an individual
residing at 9749 Maplecrest Circle, S.E., Lehigh Acres, Florida
33936, U.S.A. ("Young", together with each of DeBlis and Frucht
hereinafter collectively referred to as the "Insider Shareholders";
and the Insider Shareholders and GEM are hereinafter collectively
referred to as the "Shareholders"), and BOONTON ELECTRONICS
CORPORATION, a company incorporated under the laws of the State of
New Jersey, U.S.A. whose principal business address is at 25
Eastmans Road, Parsippany, New Jersey 07054, U.S.A. (the "Compa-
ny").
WITNESSETH:
WHEREAS, GEM is the direct and/or beneficial owner of Two
Hundred Sixty Thousand Three Hundred (260,300) shares of common
stock of the Company representing 15.905% of the total issued and
outstanding shares of capital stock in the Company, and is entitled
to acquire additional shares of the Company pursuant to an out-
standing but unexercised option granted to GEM by the Company (the
"GEM Shares"); and
WHEREAS, as of the date of this Agreement DeBlis is the
direct and/or beneficial owner of Sixty-Three Thousand Six Hundred
Forty-Eight (63,648) shares of common stock of the Company repre-
senting 3.8891% of the total issued and outstanding shares of capi-
tal stock in the Company(the "DeBlis Shares"); and
WHEREAS, as of the date of this Agreement Frucht is the
direct and/or beneficial owner of Thirty Six Thousand Seven Hundred
Eighty Two (36,782) shares of common stock of the Company repre-
senting 2.2475% of the total issued and outstanding shares of capi-
tal stock in the Company(the "Frucht Shares"); and
WHEREAS, as of the date of this Agreement Young is the
direct and/or beneficial owner of One Hundred Twenty-Four Thousand
Six Hundred Six (124,606) shares of common stock of the Company
representing 7.6137% of the total issued and outstanding shares of
capital stock in the Company(the "Young Shares" together with the
DeBlis Shares and Frucht Shares hereinafter collectively referred
to as the "Insider Shares"; and the Insider Shares and GEM Shares
together are hereinafter collectively referred to as the "Shares");
and
WHEREAS, the Shareholders consider it appropriate and in
the best interests of the Company to enter into this Agreement with
respect to the management of the Company and the transfer or other
disposition of the Shares.
NOW, THEREFORE, in consideration of the mutual premises
and covenants contained in this Agreement, the Parties hereby agree
as follows:
ARTICLE I
General Agreement
1.1 The Shareholders hereby agree to retain, vote,
transfer or encumber their respective Shares, owned by them as of
the date of this Agreement or thereafter acquired pursuant to an
existing option, only in the manner and upon the terms provided for
in this Agreement, and further agree that none of the Shares, nor
any interest in all or any part of the Shares shall be sold,
assigned, pledged, given or otherwise transferred or encumbered
(except with respect to encumbrances arising from the purchase of
Shares on margin), in any manner, or by any means whatsoever,
voluntarily or otherwise, except in the manner and upon the terms
and conditions provided for in this Agreement.
1.2 The Company shall not cause or permit the transfer
of any of the Shares to be made on its books unless the transfer is
permitted by this Agreement, and has been made in accordance with
its terms.
ARTICLE II
Lifetime Transfers
2.1 None of the Insider Shares nor any interest in all
or any part thereof may be sold, assigned, pledged, given or other-
wise transferred or encumbered (except with respect to encumbrances
arising from the purchase of Shares on margin), voluntarily or
otherwise, to any other person or entity, except by complying with
the terms, conditions and provisions of this Agreement. Nothing
herein shall restrict the right of GEM to sell, assign, pledge or
otherwise transfer the GEM Shares.
2.2 Subject to the provisions of Sections 2.5 below, in
the event that any of the Insider Shareholders shall desire volun-
tarily, or shall be required by law or this Agreement, directly or
indirectly, or by action against the Insider Shares themselves, to
sell, assign, pledge, give or otherwise transfer and encumber all
or any portion of the Insider Shares while he or it is living or in
existence, as the case may be, such Insider Shareholder shall do so
only as provided in either Section 2.3 or 2.4 hereof.
2.3 An Insider Shareholder may sell all or any portion
of the Insider Shares owned by him or it as of the date of this
Agreement or thereafter acquired pursuant to an existing option
(directly and/or beneficially) to any other Shareholder, provided,
however, that such Insider Shareholder shall first give written
notice to GEM (the "First Offer Notice") identifying the number of
Insider Shares being offered (the "Offered Insider Shares"), the
purchase price the Insider Shareholder proposes to be paid for the
Offered Insider Shares and the terms of payment thereof (the "First
Offer Price"), and any encumbrances with respect to any of the
Offered Insider Shares. Within twenty (20) days of the receipt of
the First Offer Notice by GEM, GEM shall have an option to elect to
purchase the Offered Insider Shares at the First Offer Price (the
"Option"). The Option shall be deemed exercised upon written
notice to the selling Insider Shareholder by GEM, given prior to
the expiration of the First Option Period. If the Option is not
exercised or if the Option is exercised, but the Offered Insider
Shares are not purchased by GEM within forty-five (45) days of such
exercise, then the selling Insider Shareholder shall be free, for
a period of one hundred and fifty (150) days commencing from the
date GEM received the First Offer Notice to complete the sale of
the Offered Insider Shares to any other Insider Shareholder at a
price equal to or greater than and on terms not more favorable than
the First Offer Price.
2.4 An Insider Shareholder who has received a bona fide
third party offer (other than from another Shareholder) to purchase
all or any portion of the Shares held by him or it as of the date
of this Agreement or thereafter acquired pursuant to an existing
option or who desires to sell all or any portion of the Shares held
by him or it through a market maker or stockbroker authorized to
sell the Shares (the "Selling Shareholder") shall serve notice upon
GEM (the "Notice to Sell") of the Selling Shareholder's desire to
sell his Shares and identifying the number of Shares to be sold
(the "Offered Shares"), the name and address of the person desiring
to purchase the same (or in the case of a market maker and/or
stockbroker the name, address and phone number of the market maker
and/or stockbroker), the sale price and terms of payment of such
sale or the price quoted by the market maker and/or stockbroker for
the Offered Shares on the date of the Notice to Sell (the "Purchase
Terms") and any encumbrances with respect to the Offered Shares.
GEM shall have a right of first refusal to purchase the Offered
Shares from the Selling Shareholder in accordance with the Purchase
Terms set forth in the Notice to Sell (except that with respect to
Offered Shares being sold through a market maker or stockbroker,
such shares shall be sold at the market price on the date GEM
elects to purchase the Offered Shares, provided, however, that in
the event (i) the market price has fallen below the price set forth
in the Notice to Sell by more than ten (10%) percent, the Selling
Shareholder may withdraw the offer to sell and shall thereafter be
precluded from proceeding with the sale of the Offered Shares
without first having submitted to GEM a new Notice to Sell or (ii)
the market price has risen above the price set forth in the Notice
to Sell by more than ten (10%) percent, GEM may elect not to
proceed with the purchase of the Offered Shares) by delivering
notice of its intention to purchase the Offered Shares to the
Selling Shareholder within ten (10) business days of its receipt of
the Notice to Sell. In the event GEM shall refuse or fail to
exercise its right of first refusal to purchase the Offered Shares
from the Selling Shareholder as provided hereinabove, or exercises
its right of first refusal but fails to purchase the Offered Shares
within twenty-five (25) days of its receipt of the Notice to Sell,
the Selling Shareholder may proceed with the sale of the Offered
Shares to the bona fide third party purchaser or through the market
maker and/or stockbroker in accordance with the Purchase Terms set
forth in the Notice to Sell (or in the case of a sale through a
market maker and/or stockbroker, at the market price quoted on the
date of sale) provided, however, that such sale must be consummated
within sixty (60) days of the date of the Notice to Sell.
2.5 Notwithstanding anything herein contained to the
contrary, an Insider Shareholder may transfer all or any portion of
the Shares owned by him by gift to an immediate family member upon
written notice to GEM, provided, however, that the provisions of
this Section 2.5 shall not apply to or run to the benefit of such
transferee, who shall otherwise remain obligated by the terms and
provisions of this Agreement, as provided in Article IV.
ARTICLE III
Disposition Upon Death, Disability or Bankruptcy
3.1 Subject to the provisions of Section 3.3 below, upon
the death, permanent disability or filing of a petition in bank-
ruptcy by or against an Insider Shareholder, GEM shall have the
option to purchase and, upon the exercise of such option, the legal
representative of the deceased Insider Shareholder, or such Insider
Shareholder, as the case may be, shall sell to GEM the Shares held
by such Insider Shareholder or deceased Insider Shareholder for a
price equal to the average trading price per share of the Company's
registered shares for the last One Hundred Thousand (100,000)
shares sold through market makers authorized to sell the Shares
during the period immediately preceding the death, permanent
disability, or the entry of an order for relief in the bankruptcy
proceedings commenced by or against such Insider Shareholder. In
the event GEM does not exercise its option to purchase an Insider
Shareholder's Shares as provided herein, the transferee of such
Shares shall be bound by the requirements of Article IV of this
Agreement.
3.2 The selling Insider Shareholder or the legal repre-
sentative of the deceased Insider Shareholder, as the case may be,
shall deliver the Shares to GEM within sixty (60) days following
the exercise of the option set forth in Paragraph 3.1 herein.
3.3 Notwithstanding anything herein contained to the
contrary, an Insider Shareholder may transfer all of his Shares by
devise or bequest to an immediate family member, provided, however,
that the provisions of this Section 3.3 shall not apply to or run
to the benefit of such transferee, who shall otherwise remain
obligated by the terms and provisions of this Agreement, as pro-
vided in Article IV.
3.4 Upon the death of any Insider Shareholder, the
Company shall promptly attempt to ascertain the identity of the
executor, administrator or personal representative of such deceased
Insider Shareholder and, upon learning the identity thereof, shall
give notice in writing to such executor, administrator or personal
representative of such executor's, administrator's or personal
representative's obligations and rights under this Agreement.
ARTICLE IV
Obligation and Rights of Transferee
In the event that any of the Shares shall be transferred
to any person, firm, corporation or other entity, as permitted by
and pursuant to any provision of this Agreement, as a condition
precedent to the transfer of such Shares on the books of the
Company, such transferee must deliver to the Company a properly
authorized and duly executed written amendment to this Agreement,
providing that such transferee accepts such Shares subject to all
of the terms and conditions of this Agreement relating to transfer
and thereby acknowledge that the provisions and rights contained in
Sections 2.5 and 3.3 of this Agreement shall not apply to such
transferee. All Certificates representing the Shares transferred
to such transferee shall bear a restrictive legend in form satis-
factory to the Company. In the event that an attempt is made to
transfer, or compel the transfer, of any of the Shares, or any
interest therein, the voluntary or involuntary transferee shall
have no interest in the Shares, until the transferor Shareholder,
or his estate, as the case may be, shall have first complied with
the applicable provisions of this Agreement.
ARTICLE V
Voting Agreement
5.1 The Shareholders agree among themselves, and with
the Company, that they shall attend all meetings of Shareholders,
in person or by proxy, and/or execute all necessary unanimous
written consents of the Shareholders and/or call such special
meeting of all the shareholders of the Company as may be necessary
or desirable to accomplish the purposes and intent of this Article
V and the provisions of this Agreement, in accordance with the
principles set forth in this Agreement.
5.2 Each Shareholder agrees to take all action, includ-
ing, but not limited to, the voting of the capital stock of the
Company owned by such Shareholder, so that the Board of Directors
of the Company shall consist of seven (7) qualified directors
including at least two qualified members designated by GEM one of
who will serve as chairman of the Board of Directors, subject to
the provisions of Section 5.3 below. In the event of the resig-
nation, death, disqualification or removal by the Company or the
Board of Directors of any member of the Board of Directors desig-
nated by GEM (pursuant to this Section 5.2 or Section 5.3 below),
the Shareholders agree to replace such director(s) with member(s)
designated by GEM and, to the extent necessary, to cause a notice
of special shareholders' meeting to be sent to each shareholder of
record of the Company in accordance with the Bylaws of the Company,
stating the purpose of the meeting and naming such designee(s). At
the meeting called pursuant to such notice, each of the Sharehold-
ers shall vote his Shares so as to elect the nominee(s) of GEM as
a director of the Company.
5.3 In the event the Board of Directors of the Company
causes or allows any of the acts set forth in subsection (a)
through (k) below to be taken (or approves or allows any acts to be
taken which contemplate the taking of any of the acts described in
subsection (a) through (k) below) without the consent of the Board
members designated by GEM each of the Shareholders agrees to cause
(and/or to cause the Board of Directors to cause) a notice of
special shareholders' meeting to be called and served upon each
shareholder of record of the Company in accordance with the Bylaws
of the Company, for the purpose of removing the existing Board of
Directors, voting for a new Board of Directors and naming seven (7)
designees to the Board, which shall include at least four (4)
members designated by GEM. At the meeting called pursuant to such
notice, the Shareholders agree to take all action, including, but
not limited to, the voting of the capital stock of the Company
owned by such Shareholder, so that the Board of Directors of the
Company shall consist of seven (7) qualified directors, including
at least four (4) qualified members designated by GEM.
(a) Any amendment, alteration or repeal of any
provision of the Certificate of Incorporation or Bylaws of the
Company;
(b) The dissolution or liquidation, or the taking
of any action authorizing the dissolution or liquidation of the
Company;
(c) Increasing the authorized share capital of the
Company, creating any new class or series of stock, or approving
and/or authorizing any recapitalization of the shares of capital
stock of the Company;
(d) The payment of any dividend on the common stock
of the Company, whether in cash or in securities of the Company or
of any other entity, or the making of any distribution to the
shareholders of the Company;
(e) The approval or acceptance of any plan of
redemption or acquisition by the Company of any of its shares of
capital stock;
(f) Any increase in the size of the Board of
Directors;
(g) The termination of, or modification or amend-
ment to, the powers and duties of the Budget Committee, Compensa-
tion Committee, Audit Committee or Environmental Committee;
(h) The appointment to each of the Environmental
Committee, Compensation Committee and Audit Committee of represen-
tatives or persons other than Daniel Auzan, Ronald T. DeBlis and
Otto H. York, (or any successor unanimously approved by such
committee's existing members), or the removal of Daniel Auzan,
Ronald T. DeBlis or Otto H. York (or any of their approved succes-
sors) from such committees;
(i) The appointment to the Budget Committee of
representatives or persons other than Daniel Auzan, Otto H. York
and Ronald DeBlis (or any successor unanimously approved by such
committee's existing members), or the removal of any of Daniel
Auzan, Otto H. York or Ronald DeBlis (or any of their approved
successors) from such committee;
(j) The removal of Daniel Auzan as Chairman of
Board of Directors and Otto H. York as Vice Chairman of the Board
of Directors of the Company during their elected terms; or
(k) Any increase in the compensation of any
employee of the Company other than as authorized by the Compensa-
tion Committee.
ARTICLE VI
Termination of Agreement
6.1 Unless terminated sooner by the unanimous agreement
in writing of the Company and the Shareholders then remaining, this
Agreement shall terminate upon the occurrence of any of the follow-
ing events:
6.1(i) Cessation of the Company's business.
6.1(ii) Liquidation and/or dissolution of the Company.
6.1(iii) Upon all of the Shares being held by a single
Shareholder.
6.1(iv) When GEM no longer owns at least ten percent
(10%) of the outstanding shares of capital stock in the Company.
6.1(v) On April 21, 1998, provided, however, that in
the event GEM fails to timely exercise its option under that
certain Subscription and Option Agreement, dated October 21, 1996
by and between GEM and the Company, this Agreement shall terminate
on April 22, 1997.
ARTICLE VII
Statement as to Shares
Each of the Shareholders and the Company hereby agree
that they shall provide to any Shareholder or the Company from time
to time, at the request of any Shareholder or the Company, with a
written statement of the number of Shares then held by the
Shareholder receiving such a request, together with the certificate
numbers for such Shares and the location where they are kept.
ARTICLE VIII
Specific Performance
The parties hereto agree that any violation of this
Agreement other than a default in the payment of money, cannot be
compensated for by damages, and the aggrieved party shall have the
right, and is hereby granted the privilege, of obtaining specific
performance of this Agreement in any court of competent jurisdic-
tion, upon the event of any breach hereunder.
ARTICLE IX
Notices
All notices, designations, consents, offers, acceptances
or any other communications provided for or permitted herein shall
be sufficiently given if in writing and delivered or sent by inter-
nationally recognized overnight express courier service as follows,
or to such other address as the party shall have given notice of
pursuant to the foregoing terms:
If to GEM, to:
G.E.M. USA, Inc.
c/o Metrix S.A.
General de Mesure et de Maintenance
Electronique, S.A.
c/o Metrix S.A.
Parc des Glaisins
6, avenue du Pre' Challes
B.P. 330
74943 Annecy-le-Vieux Cedex, France
If to DeBlis, to:
Ronald T. DeBlis
37 Farmstead Road
Short Hills, New Jersey 07078
If to Frucht, to:
Jack Frucht
380 Mountain Road, Apt. 512
Union City, New Jersey 07087
If to Young, to:
John M. Young
9749 Maplecrest Circle Southeast
Lehigh Acres, Florida 33936
If to the Company, to:
Boonton Electronics Corporation
25 Eastmans Road
Parsippany, New Jersey 07054
ARTICLE X
Miscellaneous
10.1 This Agreement shall inure to the benefit of and
shall be binding upon the parties, their heirs, legal representa-
tives, successors and assigns, and shall be binding upon any person
who receives any of the Shares of the Company either in accordance
with, or in violation of, the terms of this Agreement.
10.2 If any provision of this Agreement shall be or be-
come illegal or unenforceable, in whole or in part, for any reason
whatsoever, the remaining portions shall nevertheless be deemed
valid, binding and subsisting.
10.3 The waiver by any of the parties hereto of a breach
or violation of any provision of this Agreement shall not operate
or be construed as a waiver of any subsequent breach or violation
thereof.
10.4 This written document expresses the entire agreement
among the parties hereto and supersedes any prior agreements or
understandings concerning the subject of this Agreement. No amend-
ment shall be valid unless in writing and signed by all parties.
10.5 The section and other headings contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement.
10.6 This Agreement may be executed in one or more count-
erparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
10.7 This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of New Jersey.
Should any provision of this Agreement require judicial interpreta-
tion, it is agreed that the court interpreting or considering such
provision shall not apply the presumption that the terms hereof
shall be more strictly construed against a party by reason of the
rule or conclusion that a document should be construed more strict-
ly against the party who itself or through its agent prepares the
same. It is agreed and stipulated that all parties hereto have
participated equally in the preparation of this Agreement and that
legal counsel was consulted by each party before the execution of
this Agreement.
IN WITNESS WHEREOF, and intending to be legally bound,
the parties have executed this Agreement and intend that it be
effective as of the day and year first above written.
Witness/Attest: G.E.M. USA, INC.
______________________ By: /s/ Daniel Auzan
----------------------
Daniel Auzan, President
______________________ /s/ Ronald T. DeBlis
-----------------------
RONALD T. DeBLIS
_____________________ /s/ Jack Frucht
-----------------------
JACK FRUCHT
_____________________ /s/ John M. Young
-----------------------
JOHN M. YOUNG
BOONTON ELECTRONICS CORPORATION
_____________________ By: /s/ Victor Tolan
-----------------------
VICTOR TOLAN
