UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
BOONTON ELECTRONICS CORPORATION
(Name of Issuer)
Common Stock, par value $0.10 per share
(Title of Class of Securities)
099257107
(CUSIP Number)
Daniel Auzan
G.E.M. USA, Inc.
c/o Robert P. Regimbal, Esq.
Graham, Curtin & Sheridan, A Professional Association
4 Headquarters Plaza
Morristown, NJ 07962-1991
(973) 292-1700
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
October 21, 1997
(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 268,016
BENEFICIALLY -----------------------------------------
OWNED BY 8. SHARED VOTING POWER
EACH REPORTING None
------------------------------------------
9. SOLE DISPOSITIVE POWER
268,016
------------------------------------------
10. SHARED DISPOSITIVE POWER
None
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
268,016
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES / /
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.3%
14. TYPE OF REPORTING PERSON
CO
Page 3 of 6 Pages
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. ("GEM")
(b) c/o General Electronique Mesure, S.A.
16 rue Joseph Cugnot
Z.I deBracheux
6000 Beauvais, France
(c) N/A
(d) No
(e) No
(f) Delaware - U.S.A.
(a) General Electronique Mesure, S.A. ("GMME")
(b) 16 rue Joseph Cugnot
(c) Z.I deBracheux
6000 Beauvais, France
(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
(a) Henri Treibel
(b) 16 rue Joseph Cugnot
6000 Beauvais
France
(c) Secretary and Treasurer of GEM and CFO of GMME
(d) No
(e) No
(f) France
Page 4 of 6 Pages
(a) Victor Tolan
(b) 1031 Segovia Circle
Placentia, CA 92870
(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.
$25,000.00 in working capital of G.E.M. USA, Inc.
from the capital contribution of General Electronique
Mesure, 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 435,984 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 5 of that certain
Subscription and Option Agreement dated
October 2, 1997, (a copy of which is attached
hereto as Exhibit A) and (ii) the shares of
Ronald T. DeBlis, Jack Frucht and John M.
Young under certain circumstances as provided
in
Section 6 of the aforementioned Agreement.
(b) None.
(c) None.
(d) None.
(e) None.
(f) None.
(g) Reference is hereby made to Sections 5 and 6
of the Subscription and Option Agreement dated
October 2, 1997, attached hereto as Exhibit A.
(h) None.
(i) None.
Page 5 of 6 Pages
(j) None
Item 5. Interest in Securities of the Issuer.
(a) 268,016 shares of common stock owned by
G.E.M. USA, Inc., representing
approximately 16.31% of the outstanding
stock of Boonton Electronics Corporation,
with the option to acquire an additional
435,984 shares of common stock
representing, after the issuance
thereof,approximately 33.84% of the
outstanding stock of Boonton Electronics
Corporation.
(b) 268,016 direct.
(c) None.
(d) None.
(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
October 21, 1996 (a copy of which was filed with the
first amendment to Schedule 13D, and (iii) the
Subscription and Option Agreement dated October 2,
1997 attached hereto as Exhibit A.
Item 7. Exhibits.
Subscription and Option Agreement dated October 2,
1997 by and between Boonton Electronics Corporation
and G.E.M. USA, Inc., Ronald T. DeBlis, John M. Young
and Jack Frucht.<PAGE>
Page 6 of 6 Pages
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: December , 1997
SUBSCRIPTION AND OPTION AGREEMENT
between
G.E.M. USA, INC.
and
BOONTON ELECTRONICS CORPORATION
DATED: October 2 __, 1997
<PAGE>
TABLE OF CONTENTS
1. SUBSCRIPTION FOR COMMON SHARES 3
1.1 Subscription 3
1.2 Subscription Price 3
1.3 Payment of Subscription Price 3
1.4 Certificates for Common Shares 4
2. OPTION 4
2.1 Option 4
2.2 Option Period 4
2.3 2.3 Exercise of Option 5
2.4 Exemption Price 5
2.5 Certificates for Option Shares 5
2.6 Assignability of Option 6
3. REPRESENTATIONS AND WARRANTIES 6
3.1 Representations and Warranties of the Company 6
3.2 Representations and Warranties of Buyer 6
3.3 Survival of Representations and Warranties and
Covenants 7
4. CLOSING REQUIREMENTS 7
4.1 The Company's Deliverables 7
4.2 Buyer's Deliverables 7
4.3 The Company's Post-Execution Deliverables 8
5. RIGHT OF FIRST REFUSAL 8
5.1 Issuance or Transfer of Shares by the Company 8
6. LIFETIME TRANSFERS 9
7. FIRST AND SECOND SUBSCRIPTION AGREEMENTS 14
8. INDEMNIFICATION 14
8.1 Indemnification by the Company 14
8.2 Indemnification by Buyer 14
9. FURTHER ASSURANCES 15
10. NOTICES 15
11. MISCELLANEOUS 16
11. 11.1 Entire Agreement 16
11.2 Binding Effect1
11.3 Headings 16
11.4 Counterparts 17
11.5 Assignment 17
11.6 Fees and Expenses/Brokers
11.7 Applicable Law 17
<PAGE>
SUBSCRIPTION AND OPTION AGREEMENT
THIS AGREEMENT made this 2nd day of October, 1997 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"), G.E.M. USA, INC.,
a company incorporated under the laws of Delaware whose principal
business address is at General Electronique de Mesure, 16, rue
Joseph Cugnot, Z.I de Bracheux, 60000 Beauvais, France ("Buyer"),
RONALD T. DEBLIS, an individual residing at 37 Farmstead Road,
Short Hills, New Jersey 07078, U.S.A. ("DeBlis"), JOHN M. YOUNG, an
individual residing at 9749 Maplecrest Circle, S.E., Lehigh Acres,
Florida 33936, U.S.A. ("Young") and JACK FRUCHT, an individual
residing at 380 Mountain Road, Apt. 512, Union City, New Jersey
07087, U.S.A. ("Frucht") (DeBlis, Young and Frucht shall
hereinafter be referred to as the "Insider Shareholders").
WITNESSETH:
WHEREAS, the Company is a New Jersey corporation duly
organized under the laws of the State of New Jersey whose Articles
of Incorporation, as amended through the date hereof, provide that
its entire authorized capital consists of 5,000,000 shares of
Common Stock, par value $.10 each, of which 1,636,585 shares were
issued and outstanding as of July 31, 1997, 26,500 shares were held
in the Company's 1987 Incentive Stock Option Plan, 1987 Employee
Stock Purchase Plan and 1987 Stock Option Program for Non-Employee
Directors as of July 31, 1997, and zero shares were held by the
Company in treasury as of July 31, 1997; and
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").
WHEREAS, the Company and Buyer entered into that certain
Subscription and Option Agreement dated as of October 21, 1996
(a true copy of which is attached hereto as Exhibit B and is
hereinafter referred to as the "Second Subscription Agreement")
pursuant to which (i) Buyer agreed to purchase 80,000 shares of
Common Stock in the Company free and clear of all liens,
encumbrances, security interests, title defects and restrictions,
and (ii) the Company granted Buyer an option to acquire an
additional 443,700 shares of Common Stock in the Company which, if
exercised and fully issued, together with Buyer's prior acquisition
of shares in the Company, would have represented approximately
33.8% of all the issued and outstanding shares of Common Stock in
the Company, pursuant to the terms and conditions set forth in the
Second Subscription Agreement; and
WHEREAS, Buyer presently owns 260,300 shares of Common
Stock in the Company; and
WHEREAS, DeBlis, Frucht and Young presently collectively
own 231,036 shares of Common Stock in the Company (such shares of
common stock shall be referred to as the "Insider Shares"); and
WHEREAS, Buyer now desires to subscribe for, and the
Company desires to sell, Seven Thousand Seven Hundred and Sixteen
(7,716) shares of Common Stock in the Company held by the Company,
representing, when issued, together with Buyer's prior acquisition
of shares in the Company, approximately 16.3% percent of all the
issued and outstanding shares of capital stock in the Company, to
be credited as fully paid for the subscription price and upon the
terms and conditions hereinafter set forth; and
WHEREAS, the Company desires to grant to Buyer, among
other things, an option to acquire an additional 435,984 shares of
Common Stock in the Company, such option to be exercisable from the
date hereof when the Company shall receive the sum of $25,000 as an
option fee and continuing for a period of two (2) years thereafter
upon the terms and conditions hereinafter set forth.
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 Seven Thousand Seven
Hundred Sixteen (7,716) 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 Three and 24/100 ($3.24) 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 October 2,
1997, 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 Twenty-Five Thousand
($25,000) Dollars (the "Option Fee") and other good and valuable
consideration, 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 Thirty Five Thousand Nine Hundred Eighty Four (435,984)
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 October 2, 1999 (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;
(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.
(B) A Registration Rights Agreement in form and
substance satisfactory to Buyer in its sole discretion.
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 and Option Fee in
the manner provided by Sections 1.3 and 2.1 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 October 31, 1997, 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. RIGHT OF FIRST REFUSAL.
5.1 Issuance or Transfer of Shares by the Company. In the
event that the Company shall desire to issue or transfer all or any
portion of its authorized but unissued shares of capital stock
within two (2) years from the date hereof, of whatever class or
series, or of any shares of capital stock held by it in treasury or
otherwise (except for such shares of capital stock in the Company
which have been made available to any stock option plan or program
of the Company or which are subject to a valid option) (the
"Offered Shares") by means of exchange of shares with another
corporation or voluntary sale pursuant to an offer from or to a
bona fide third party to purchase or exchange the Offered Shares,
the Company shall:
(a) Serve written notice upon Buyer of the Company's
desire to sell or exchange the Offered Shares, and identifying
therein the name and address of the bona fide third party purchaser
desiring to purchase the Offered Shares, the number of Offered
Shares, the sales price or exchange ratio and the terms and
conditions of such sale or exchange, including the payment terms.
(b) Upon its receipt of the notice described in Section
5.1(a) above, Buyer shall have the right but not the obligation to
purchase all of the Offered Shares on the same terms and conditions
as offered to the bona fide third party purchaser or to allow the
sale or exchange. Buyer's right to purchase the Offered Shares
must be exercised within thirty (30) days of its receipt of the
notice described in Section 5.1(a) above. In the event Buyer fails
to exercise its right to purchase the Offered Shares within said
thirty (30) day period, the Company may complete the sale or
exchange of the Offered Shares to the third party bona fide
purchaser, provided such sale or exchange is completed in
accordance with the terms and conditions of the original offer as
disclosed to Buyer in the notice provided by Section 5.1(a) above.
6. LIFETIME TRANSFERS.
6.1 So long as Buyer (along with all of its affiliates and
subsidiaries) own at least 15% of all the issued and outstanding
shares of the Company, none of the Insider Shares nor any interest
in all or any part thereof may be sold, assigned, pledged, given or
otherwise 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 Buyer to
sell, assign, pledge or otherwise transfer any of the shares owned
by Buyer.
6.2 Subject to the provisions of Sections 6.5 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 6.3 or 6.4 hereof.
6.3 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
Buyer (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 ten (10) days of the receipt of the First
Offer Notice by Buyer, Buyer 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 Buyer, 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 Buyer within ten (10) 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 Buyer 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.
6.4 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
Buyer (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.
Buyer 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 Buyer
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 Buyer 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, Buyer 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 Buyer 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 ten (10) 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.
6.5 Notwithstanding anything herein contained to the
contrary, an Insider Shareholder may transfer all or any portion of
the Shares owned by him by gift, devise, or bequest to an immediate
family member upon written notice to Buyer, provided, however, that
the provisions of this Section 6.5 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 Section
6.6 below.
6.6 In the event that any of the Insider 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
the terms and conditions of this Agreement relating to transfer and
thereby acknowledge that the provisions and rights contained in
Section 6.5 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 satisfactory 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, or his estate, as the case may
be, shall have first complied with the applicable provisions of
this Agreement.
7. FIRST AND SECOND SUBSCRIPTION AGREEMENTS.
Notwithstanding anything herein contained to the
contrary, the parties hereto acknowledge and agree that the
provision contained in Section 8 of the First Subscription
Agreement, as subsequently acknowledged in Section 5 of the Second
Subscription Agreement are in full force and effect (except with
respect to subsections (a) and (c) of Section 8 and except that the
Right of First Refusal referenced in subsection (b) of Section 8
shall hereinafter refer to Section 5 of this Agreement) and that
nothing in this Agreement shall be construed as superseding any of
the other terms or provisions contained therein.
8. INDEMNIFICATION.
8.1 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.
8.2 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.<PAGE>
9. 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.
10. 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 General Electronique Mesure
16, rue Joseph Cugnot
Z.I de Bracheux
60000 BEAUVAIS, FRANCE
Attention: Daniel Auzan
Fax Number: 011 333 44 05 29 04
With a copy to:
Graham, Curtin & Sheridan
A Professional Association
4 Headquarters Plaza
Morristown, New Jersey 07962
Attention: Joseph M. Lamastra, Esq.
Fax Number: (973) 898-0107
If to the Company, to:
Boonton Electronics Corporation
25 Eastmans Road
Parsippany, New Jersey 07054, U.S.A.
Attn: President
Fax Number: (973) 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: (973) 292-9168
11. MISCELLANEOUS.
11.1 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.
11.2 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.
11.3 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.
11.4 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.
11.5 Assignment. This Agreement shall not be assignable by
any party without the prior written consent of the other parties.
11.6 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.
11.7 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.
[SIGNATURE PAGE FOLLOWS]<PAGE>
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:___________________________________
Yves Guyomar, President and CEO
Buyer:
G.E.M. USA, INC.
By:___________________________________
Daniel Auzan, President
_____________________ _____________________________________
RONALD T. DeBLIS
_____________________ _____________________________________
JACK FRUCHT
_____________________ _____________________________________
JOHN M. YOUNG
