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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
UNDER THE SECURITIES ACT OF 1934
WHITTAKER CORPORATION
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
966680-40-7
(CUSIP Number)
Thomas D. Hyde
Raytheon Company
141 Spring Street
Lexington, MA 02173
617-862-6600
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
April 10, 1996
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13D 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 / x /.
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SCHEDULE 13D
CUSIP NO. 966680-40-7
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Raytheon Company
04-1760395
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS
N/A (See Item 3 of this Statement.)
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
7 SOLE VOTING POWER
1,974,333 shares
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY NONE
OWNED BY
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,974,333
PERSON
WITH 10 SHARED DISPOSITIVE POWER
NONE
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,974,333 shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.9%
14 TYPE OF REPORTING PERSON
CO
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Item 1. Security and Issuer.
This statement relates to shares of the Common Stock, $.01 par value
per share (the "Common Stock") of Whittaker Corporation, a Delaware corporation
("Whittaker"). The principal executive offices of Whittaker are located at 1955
N. Surveyor Avenue, Simi Valley, California 93063.
Item 2. Identity and Background.
This statement is being filed by Raytheon Company, a Delaware
corporation ("Raytheon"). Raytheon is an international, high technology company
which operates in four businesses: commercial and defense electronics;
engineering and construction; aircraft; and major appliances. Raytheon's
principal office is located at 141 Spring Street, Lexington, Massachusetts
02173.
The name, residence or business address, principal occupation or
employment and citizenship of each of the executive officers and directors of
Raytheon are set forth in Schedule A hereto.
Within the past five years, none of the persons named in this Item 2
or listed on Schedule A has been convicted in any criminal proceeding
(excluding traffic violations or similar misdemeanors) or was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction and
as result of such proceeding was or is subject to a judgment, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, Federal or State securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
On April 10, 1996 (the "Closing Date") Raytheon consummated the sale of
its Xyplex, Inc. ("Xyplex") subsidiary to Whittaker in accordance with a Stock
Purchase Agreement dated March 2, 1996 (the "Stock Purchase Agreement") by and
between Raytheon and Whittaker. Pursuant to the Stock Purchase Agreement, on the
Closing Date, Whittaker acquired all of the issued and outstanding shares of
common stock of Xyplex in consideration of the payment to Raytheon of a purchase
price consisting of $67,500,000 in cash and 1,974,333 shares of Whittaker Common
Stock (the "Shares").
Item 4. Purpose of the Transaction.
The transaction requiring the filing of this statement is described in
Item 3 above. Raytheon intends to review continuously its equity position in
Whittaker. It is Raytheon's present intent to liquidate the Shares in an orderly
fashion in accordance with applicable securities laws and as market conditions
permit.
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Raytheon does not have any present plan or proposal which relates to or
would result in (i) an extraordinary corporate transaction, such as a merger,
reorganization, liquidation, or sale or transfer of a material amount of assets
involving Whittaker or any of its subsidiaries, (ii) any change in Whittaker's
present Board of Directors or management, (iii) any material changes in
Whittaker's present capitalization or dividend policy or any other change in
Whittaker's business or corporate structure, (iv) any change in Whittaker's
charter or by-laws or (v) causing Whittaker's Common Stock to be delisted from a
national securities exchange or to become eligible for termination of its
registration pursuant to Section 12(g)(4) of the Securities Exchange Act of
1934.
Item 5. Interest in Securities of the Issuer.
(a) Raytheon beneficially owns 1,974,333 shares of Whittaker Common
Stock, or approximately 17.91% of the outstanding shares of Whittaker Common
Stock. To the best of Raytheon's knowledge, none of the persons named in
Schedule A hereto beneficially owns any shares of Whittaker Common Stock.
(b) Raytheon has the sole power to vote, direct the voting of, dispose
of, or direct the disposition of, the Shares, subject to the arrangements
described in Item 6 of this statement.
(c) Neither Raytheon nor, to the best knowledge of Raytheon, any of the
persons named in Schedule A hereto has effected any transaction in Whittaker
Common Stock during the past sixty days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
In connection with the transaction described in Item 3 of this
statement, Raytheon and Whittaker entered into a Stockholder's Agreement dated
as of the Closing Date (the "Stockholder's Agreement"). Certain terms of the
Stockholder's Agreement are summarized below. This summary, however, does not
purport to contain a complete description of the Stockholder's Agreement and is
qualified in whole by reference to such agreement, a copy of which is filed as
an exhibit hereto.
Pursuant to the terms and conditions of the Stockholder's
Agreement, Raytheon has agreed that (i) for a period of one year following the
Closing Date, it will vote the Shares upon matters recommended by Whittaker
management at least in the same proportion as cast by all other holders of
Whittaker Common Stock, (ii) it will not, (x) during any calendar week, sell
Shares in excess of ten percent of the average weekly trading volume in
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Whittaker Common Stock during the immediately preceding thirteen weeks
(excluding block trades to Qualified Institutional Buyers), (y) in any single
transaction or series of related transactions, sell more than five percent of
the outstanding shares of Whittaker Common Stock to any one person without the
prior consent of Whittaker or (z) sell Shares to certain persons holding more
than five percent of Whittaker Common Stock without the prior consent of
Whittaker and (iii) it will not purchase additional shares of Whittaker Common
Stock or hedge its ownership of the Shares without the prior consent of
Whittaker. In addition Raytheon has agreed to provide Whittaker with a right
of first refusal with respect to sales involving more than 100,000 Shares and
agreed that for a period of three years following the Closing Date Whittaker
shall have the right to redistribute the Shares.
Item 7. Material to be Filed as Exhibits.
1. Schedule A: Identity and background of directors and executive
officers.
2. Stockholder's Agreement dated April 10, 1996 by and between
Raytheon and Whittaker.
SIGNATURE
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.
Raytheon Company
By: /s/ Thomas D. Hyde
Thomas D. Hyde
Vice President and General Counsel
April 10, 1996
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INDEX TO EXHIBITS
Exhibit No. Exhibit
99.1 Identity and background of directors
and executive officers.
99.2 Stockholder's Agreement dated
April 10, 1996 by and between
Raytheon and Whittaker.
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All of the persons listed below are United States citizens.
Directors of Raytheon Company
Name/Business Address Principal Occupation
Charles F. Adams Retired Chairman, Raytheon Company
Raytheon Company
141 Spring Street
Lexington, MA 02173
Francis H. Burr Of Counsel, law firm of Ropes &
Ropes & Gray Gray
One International Place
Boston, MA 02110
Ferdinand Colloredo-Mansfeld Chairman and Chief Executive
Cabot Partners Officer, Cabot Partners (Real
Two Center Plaza Estate Investment and Management)
Suite 200, 2nd Floor
Boston, MA 02108-1906
Theodore L. Eliot, Jr. International Relations
5850 Grove Street
Sonoma, CA 95476
John R. Galvin Dean, Fletcher School of Law and
Tufts University Diplomacy
160 Packard Avenue
Medford, MA 02155
Barbara B. Hauptfuhrer Corporate Director
1700 Old Welsh Road
Huntingdon Valley, PA 19006
Richard D. Hill Retired Chairman, Bank of Boston
Bank of Boston Corporation
Suite 2300
P.O. Box 2016
100 Federal Street
Boston, MA 02106
L. Dennis Kozlowski Chairman and Chief Executive
Tyco International, Ltd. Officer Tyco International, Ltd.
1 Tyco Park (Fire Protection Systems)
Exeter, NH 03833
James N. Land, Jr. Financial Advisor
Box 918
Short Hills, NJ 07078-0918
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Name/Business Address Principal Occupation
A. Lowell Lawson Raytheon Executive Vice President
E-Systems, Inc. and Chairman and Chief Executive
6250 LBJ Freeway Officer, E-Systems, Inc.
Dallas, TX 75240
Thomas L. Phillips Retired Chairman, Raytheon Company
Raytheon Company
141 Spring Street
Lexington, MA 02173
Dennis J. Picard Chairman and Chief Executive
Raytheon Company Officer, Raytheon Company
141 Spring Street
Lexington, MA 02173
Warren B. Rudman Partner, Law Firm of Paul, Weiss,
Paul, Weiss, Rifkind, Rifkind, Wharton & Garrison
Wharton & Garrison
1615 L Street, NW
Washington, D.C. 20036
Joseph J. Sisco Management Consultant
Sisco Associates
2517 Massachusetts Ave., N.W.
Washington, D.C. 20008-2823
Alfred M. Zeien Chairman and Chief Executive
The Gillette Company Officer, The Gillette Company
Prudential Tower Building, (Consumer Goods and Services)
48th Floor
Boston, MA 02199
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Executive Officers of Raytheon Company
Name/Business Address Position with Raytheon
Elizabeth H. Allen
141 Spring Street Vice President - Corporate
Lexington, MA 02173 Communications
Gail P. Anderson
141 Spring Street Vice President - Human Resources
Lexington, MA 02173
Shay D. Assad
141 Spring Street Vice President - Contracts
Lexington, MA 02173
Renso L. Caporali
141 Spring Street Senior Vice President - Government and
Lexington, MA 02173 Commercial Marketing
Philip W. Cheney
141 Spring Street Vice President and Group Executive -
Lexington, MA 02173 Commercial Electronics
Kenneth H. Colburn
141 Spring Street Vice President - Project and
Lexington, MA 02173 International Finance
Peter R. D'Angelo
141 Spring Street Executive Vice President and Chief
Lexington, MA 02173 Financial Officer
Herbert Deitcher
141 Spring Street Senior Vice President - Treasurer
Lexington, MA 02173
David S. Dwelley
141 Spring Street Vice President - Strategic Business
Lexington, MA 02173 Development
Michele C. Heid
141 Spring Street Vice President - Investor Relations
Lexington, MA 02173
Christoph L. Hoffmann
141 Spring Street Executive Vice President - Law,
Lexington, MA 02173 Corporate Administration, and Secretary
Thomas D. Hyde
141 Spring Street Vice President and General Counsel
Lexington, MA 02173
Frank Kendall
141 Spring Street Vice President - Engineering
Lexington, MA 02173
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Name/Business Address Position with Raytheon
A. Lowell Lawson
E-Systems, Inc. Executive Vice President and Chairman
6250 LBJ Freeway and Chief Executive Officer,
Dallas, TX 75240 E-Systems, Inc.
Robert S. McWade
141 Spring Street Vice President - Corporate Affairs
Lexington, MA 02173
Charles Q. Miller
141 Spring Street Executive Vice President and Chairman
Lexington, MA 02173 and Chief Executive Officer of
Raytheon Engineers & Constructors
International, Inc.
Dennis J. Picard Chairman and Chief Executive Officer
141 Spring Street
Lexington, MA 02173
Robert A. Skelly
141 Spring Street Vice President - Assistant to the
Lexington, MA 02173 Executive Office
Robert L. Swam
141 Spring Street Executive Vice President and Chairman
Lexington, MA 02173 and Chief Executive Officer of Amana
Refrigeration, Inc.
William H. Swanson
180 Hartwell Road Executive Vice President and General
Bedford, MA 01730 Manager - Raytheon Electronic Systems
Arthur E. Wegner
9709 East Central Executive Vice President and Chairman
Wichita, KS 67206 and Chief Executive Officer of
Raytheon Aircraft Company
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STOCKHOLDER'S AGREEMENT
THIS STOCKHOLDER'S AGREEMENT (the "Agreement") is made as of
April 10, 1996, by and between Whittaker Corporation, a Delaware corporation
("Whittaker") and Raytheon Company, a Delaware corporation ("Raytheon").
This Agreement is made pursuant to a Stock Purchase Agreement
dated March 2, 1996 (the "Purchase Agreement"), between Whittaker and Raytheon.
In order to induce Raytheon to enter into the Purchase Agreement and to
consummate the transactions contemplated thereby, Whittaker has agreed to
provide the registration rights set forth in this Agreement.
The parties hereto agree as follows:
1. Definitions.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the Common Stock, $.01 par value per share, of
Whittaker.
"Person" means an individual, partnership, corporation, association,
trust, joint venture, unincorporated organization, or any government,
governmental department or agency or political subdivision thereof.
"Purchase Agreement" has the meaning specified in the preamble.
"Registrable Securities" means (i) any Common Stock issued or issuable
to Raytheon under the Purchase Agreement and (ii) any securities issued or
issuable with respect to the securities referred to in clause (i) by way of a
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities when they have been distributed to the public through a broker,
dealer or market purchaser in compliance with Rule 144 under the Securities Act
(or any similar rule then in force) or sold pursuant to an effective
registration statement under the Securities Act.
"Registration Expenses" has the meaning specified in Section 4.
"Registration Statement" has the meaning specified in Section 2.
"Securities Act" means the Securities Act of 1933, as amended or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
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"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
2. Registration on Form S-3. On or before May 15, 1996, Whittaker
will prepare and file with the Commission a registration statement on Form
S-3 covering all of the shares of Common Stock issued to Raytheon pursuant
to the Purchase Agreement (the "Registration Statement"). The Registration
Statement will permit delayed or continuous offerings pursuant to Rule 415 under
the Securities Act.
3. Registration Procedures. Whittaker agrees to use its best efforts
to effect the registration of the Registrable Securities in accordance with
the intended method of disposition thereof, and pursuant thereto Whittaker will
as expeditiously as possible:
(i) use its best efforts to cause the Registration Statement
to become effective (provided that before filing the Registration
Statement or prospectus or any amendments or supplements thereto,
Whittaker will furnish to Raytheon copies of all such documents
proposed to be filed, which documents will be subject to the timely
review of Raytheon's counsel);
(ii) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective until the earlier of the third anniversary of the
effective date of the Registration Statement or such time as all of the
Registrable Securities covered by such registration statement have been
sold and to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the
Registration Statement during such effective period in accordance with
the intended methods of disposition by Raytheon set forth in the
Registration Statement;
(iii) furnish to Raytheon such number of copies of the
Registration Statement, each amendment and supplement thereto, the
prospectus included in the Registration Statement (including each
preliminary prospectus) and such other documents as Raytheon may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by Raytheon;
(iv) use its best efforts to register or qualify the
Registrable Securities under such other securities or blue sky laws of
such states of the United States as Raytheon reasonably requests and do
any and all other acts and things which may be necessary or advisable
to enable Raytheon to consummate the disposition of the Registrable
Securities in jurisdictions where Raytheon desires to effect such sales
or other disposition;
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(v) notify Raytheon, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in
the Registration Statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not
misleading, and, at the request of any such seller, Whittaker will
promptly prepare (and, when completed, give notice to Raytheon) a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading;
(vi) cause all the Registrable Securities to be listed on each
securities exchange on which similar securities issued by Whittaker are
then listed;
(vii) provide a transfer agent and registrar for all the
Registrable Securities not later than the effective date of such
registration statement;
(viii) in connection with any underwritten offering enter into
such customary agreements (including underwriting agreements in
customary form) and take all such other actions as Raytheon or the
underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of the Registrable Securities; and
(ix) in the event of the issuance of any stop order suspending
the effectiveness of the Registration Statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities included in
the Registration Statement for sale in any jurisdiction, Whittaker will
use its best efforts promptly to obtain the withdrawal of such order.
4. Registration Expenses. Except as otherwise expressly set forth in
Section 5(d) hereof, all expenses incident to Whittaker's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for Whittaker and all independent certified public
accountants and other Persons retained by Whittaker (all such expenses
being herein called "Registration Expenses") and Whittaker's internal expenses
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties) the expense of any annual
audit or quarterly review, the expense of any liability insurance for Whittaker
and its board of directors and the expenses and fees for listing the securities
to be registered on each securities exchange on which similar securities issued
by Whittaker are then listed, will be borne by Whittaker.
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5. Certain Rights and Obligations with Respect to the Registrable
Securities.
(a) Trading Procedures. Raytheon agrees that it will not, during any
calendar week, sell Registrable Securities in excess of ten percent (10%) of the
average weekly trading volume in the shares of Common Stock during the
immediately preceding thirteen weeks; provided, however, that the foregoing
restriction shall not apply to negotiated block trades to "qualified
institutional buyers" as that term is defined in Rule 144A promulgated under the
Securities Act.
Raytheon agrees that it will notify Whittaker (via telephone and/or
facsimile) prior to executing sales of Registrable Securities in excess of
100,000 shares. The notification shall indicate the number of Registrable
Securities to be sold as well as the identity of the prospective purchaser and
shall include an offer to sell such Registrable Securities to Whittaker on
the same terms and conditions governing the proposed sale to such other Person.
Whittaker may accept Raytheon's offer at any time within twenty-four hours after
receipt thereof. If Whittaker fails to accept the offer to purchase such shares
in its entirety within the required time period, Raytheon shall be free to
proceed with the proposed sale.
In addition, Raytheon agrees that it will not in any single
transaction or series of related transactions, (i) sell Registrable
Securities representing more than five percent (5%) of the issued and
outstanding shares of Common Stock to any Person or (ii) sell Registrable
Securities to Persons owning more than five percent (5%) of the issued and
outstanding shares of Common Stock who have been identified to Raytheon by
Whittaker, in each case without the prior consent of Whittaker, which consent
shall not be unreasonably withheld.
(b) Voting Agreement. For a period of one year following the date
hereof, Raytheon agrees that it will vote the Registrable Securities upon
matters recommended by Whittaker management at least in the same proportion as
cast by all other holders of shares of Common Stock.
Raytheon further agrees that in the event that shares of Whittaker
Common Stock close above $26.00 per share as reported by the New York Stock
Exchange ("NYSE") Composite Transactions for a period of twenty (20) consecutive
NYSE trading days and Raytheon has not sold at least fifty percent (50%) of the
maximum number of shares allowed pursuant to the weekly volume limitation set
forth in Section 5(a) of the Agreement during such time period (excluding the
proviso regarding block trades), then voting restrictinos shall be extended for
an additional one year period on that number of shares equal to the maximum
number that Raytheon could have sold minus the number of shares actually sold.
(c) Restrictions on Additional Purchases. So long as Raytheon holds
Registrable Securities, it will not (i) purchase additional shares of Common
Stock other than purchases by or on behalf of pension funds or other employee
benefit plans or trusts, or (ii) hedge its ownership of the Registrable
Securities in any single transaction or series of related transactions, in
each case without the prior consent of Whittaker.
(d) Secondary Distribution. Whittaker agrees to use its best efforts to
effect an underwritten secondary distribution of the Registrable Securities as
soon as practicable following the date hereof and, in the event that the
public offering price is $25.325 or greater, Raytheon shall make its Registrable
Securities available for such secondary offering. The procedures set forth in
Section 3 hereof shall apply to such secondary distribution; provided, however,
that Raytheon shall be responsible for reasonable underwriting discounts and
commissions and Registration Expenses up to a maximum amount determined by
multiplying the number of shares of Registrable Securities included under the
registration statement for such offering times the difference obtained by
subtracting the per share public offering price minus $25.325. Accordingly,
Raytheon shall not have any obligation with respect to underwriting discounts to
the extent that such per share offering price is equal to or less than $25.325.
(e) Redistribution of Registrable Securities. For a period of three
years following the date hereof, Whittaker shall have the right to redistribute
the Registrable Securities.
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6. Indemnification. (a) Whittaker agrees to indemnify, to the extent
permitted by law, Raytheon, its officers and directors and each Person who
controls Raytheon (within the meaning of the Securities Act), and each
underwriter if any, of Whittaker's securities, with respect to any registration,
qualification or compliance which has been effected pursuant to this Agreement,
against all expenses, losses, claims, damages and liabilities caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to Whittaker by Raytheon expressly for use
therein.
(b) In connection with any registration, qualification or compliance
which has been effected pursuant to this Agreement, Raytheon will furnish to
Whittaker in writing such information and affidavits as Whittaker reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify Whittaker, its
directors and officers and each Person who controls Whittaker (within the
meaning of the Securities Act) against any expenses, losses, claims, damages and
liabilities resulting from any untrue or alleged untrue statement of material
fact contained in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by Raytheon; provided that Raytheon's obligation to
indemnify will be limited to the net amount of proceeds received by Raytheon
from the sale of Registrable Securities pursuant to any such registration
statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party; provided, however, that the failure of an
indemnified party to give notice as provided herein shall not relieve an
indemnifying party of its obligations hereunder unless the failure to give such
notice is materially prejudicial to the indemnifying party's ability to defend
such action. If such defense is assumed, (i) no compromise or settlement thereof
may be effected by the indemnifying party without the indemnified party's
consent (which shall not be unreasonably withheld) unless (a) there is no
finding or admission of any violation of law or any violation of the rights of
any person and no effect on any other claims that may be made against the
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indemnified party and (b) the sole relief provided is monetary damages that are
paid in full by the indemnifying party and (ii) the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim. Subject to the foregoing
terms and provisions of this Section 6(c), each indemnifying party hereunder
will reimburse the person entitled to indemnification hereunder for all legal
and other expenses reasonably incurred in connection with investigating and
defending the action or claim for which such indemnified party seeks
indemnification, as such expenses are incurred.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. Whittaker also
agrees to make such provisions, as are requested by any indemnified party, for
contribution to such party in the event Whittaker's indemnification is
unavailable for any reason.
7. Participation in Underwritten Registrations. In the case of any
offering hereunder which is underwritten, Raytheon agrees that it will complete
and execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements; provided, however, that Raytheon shall not be required to make any
representations or warranties to Whittaker or the underwriters other than
representations and warranties regarding itself and its intended method of
distribution.
8. Noncompetition. Raytheon agrees that for a period of two (2) years
after date hereof (the "Restricted Period"), none of Raytheon or any subsidiary
of Raytheon (the "Raytheon Group"), will engage directly or indirectly in
competition with Xyplex, Inc., whether individually or as a consultant, partner,
owner or stockholder owning more than five percent (5%) of a corporation, in the
business of manufacturing network terminal servers, internetworking hubs, wide
area bridge routers, FDDI bridge routers and modular Ethernet workgroup switches
for sale in non-government markets (the "Restricted Business"). Notwithstanding
the foregoing, nothing herein shall prohibit any member of the Raytheon Group
from (a) owning, directly or indirectly, less than fifteen percent (15%) of any
class of securities listed on a national securities exchange or traded publicly
in the over-the-counter market, (b) directly or indirectly acquiring a business
which engages in the Restricted Business if such business is 25% or less
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(measured by net revenues) of a larger business so acquired by such member of
the Raytheon Group, or (c) acquiring a business which engages in the Restricted
Business if such business is more than 25% (measured by net revenues) of a
larger business so acquired by such member of the Raytheon Group, provided that
such member of the Raytheon Group places such competitive business for sale
promptly after its acquisition and uses reasonable commercial efforts to
complete such sale within the Restricted Period, (d) continuing to produce and
sell those products now being produced and sold by members of the Raytheon Group
(including within the foregoing all products that Raytheon can demonstrate to
have been under development as of the date hereof).
9. Miscellaneous. (a) No Inconsistent Agreements. Whittaker will no
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to Raytheon under this Agreement.
(b) Adjustments Affecting Registrable Securities. Whittaker will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of Raytheon to include
Registrable Securities in a registration undertaken pursuant to this Agreement
or which would materially and adversely affect the marketability of such
Registrable Securities.
(c) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(d) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the parties hereto.
(e) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
<PAGE>
8
(f) Severability. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision will be ineffective only to the
extent of such prohibition or invalidity without invalidating the remainder of
this Agreement.
(g) Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which when executed and delivered shall be an original and
all of which taken together will constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) GOVERNING LAW. THIS AGREEMENT AND THE EXHIBITS AND SCHEDULES HERETO
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT
THE LAW OF CONFLICTS, OF THE STATE OF DELAWARE.
(j) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (i) if mailed by certified or
registered mail, postage prepaid, return receipt requested, when received, (ii)
if by telex or facsimile transmission, when sent answerback or electronic
confirmation of receipt is received on a day on which business is being
conducted by the recipient, and (iii) if by overnight courier, when
receipted for, in each case when addressed to the applicable party hereto as
follows or at such other address as any party may designate by written notice to
the other, in accordance herewith:
If to Whittaker: If to Raytheon:
Whittaker Corporation Raytheon Company
1955 N. Surveyor Avenue 141 Spring Street
Simi Valley, California 93063 Lexington, MA 02173
Telecopier: (805) 584-4195 Telecopier: (617) 860-2924
Attention: General Counsel Attention: General Counsel
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties hereto have executed this Stockholder's
Agreement as of the date first above written.
Whittaker Corporation Raytheon Company
/s/ Lynne M.O. Brickner /s/ David S.Dwelley
Lynne M.O. Brickner David S.Dwelley
Assistant Vice President Vice President - Strategic Business
Development
