EXHIBIT 10.5
EMPLOYMENT AGREEMENT
AGREEMENT, made April 30, 1997 by and between L-3 Communications
Holdings, Inc., a Delaware corporation (the "Company") and Xxxxx X. Xxxxx (the
"Executive").
RECITALS
In order to induce Executive to serve as the Chairman and Chief
Executive Officer of the Company, the Company desires to provide Executive with
compensation and other benefits on the terms and conditions set forth in this
Agreement.
Executive is willing to accept such employment and perform services
for the Company, on the terms and conditions hereinafter set forth.
It is therefore hereby agreed by and between the parties as follows:
1. Employment.
1.1 Subject to the terms and conditions of this Agreement, the Company
agrees to employ Executive during the Term hereof as its Chairman and Chief
Executive Officer. In his capacity as the Chairman and Chief Executive Officer
of the Company, Executive shall report to the Board of Directors of the Company
(the "Board") and shall have the customary powers, responsibilities and
authorities of chairmen and chief executive officers of corporations of the
size, type and nature of the Company, as it exists from time to time, and as
are assigned by the Board.
1.2 Subject to the terms and conditions of this Agreement, Executive
hereby accepts employment as the Chairman and Chief Executive Officer of the
Company commencing as of the date hereof (the "Commencement Date") and agrees
to devote his full business time and efforts to the
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performance of services, duties and responsibilities in connection therewith,
subject at all times to review and control of the Board. In addition, during
the Initial Term and any Renewal Term, (i) the Company agrees to nominate
Executive for election to the Board and use its best efforts to cause his
election to the Board and Executive agrees to serve on the Board of the Company
and (ii) during the Term of Employment, Executive also agrees to serve, if
elected, as an officer and/or director of any Subsidiary of the Company,
without the payment of any additional compensation therefor. Upon the
termination of Executive's employment for any reason, Executive shall resign as
a member of the Board of the Company or any Subsidiary of the Company.
1.3 Nothing in this Agreement shall preclude Executive from engaging
in charitable work and community affairs, from managing any investment made by
him with respect to which Executive is not substantially involved with the
management or operation of the entity in which Executive has invested (provided
that no such investment in publicly traded equity securities or other property
may exceed 5% of the equity of any entity, without the prior approval of the
Board) or from serving, subject to the prior approval of the Board, as a member
of boards of directors or as a trustee of any other corporation, association or
entity, to the extent that any of the above activities do not materially
interfere with the performance of his duties hereunder. For purposes of the
preceding sentence, any approval by the Board required therein shall not be
unreasonably withheld.
2. Term of Employment. Executive's term of employment under this
Agreement (the "Term of Employment") shall commence on the Commencement Date
and, subject to the terms hereof, shall terminate on the earlier of (i) the
fifth anniversary of the Commencement Date (the "Initial Term") or (ii)
termination of Executive's employment pursuant to this Agreement.
Notwithstanding the foregoing, subsequent to the Initial Term, Executive's
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Term of Employment under this Agreement shall automatically renew annually for
one year renewal terms (the "Renewal Term") unless either party shall deliver
to the other written notice, at least 90 days prior to the expiration of the
Initial Term or any Renewal Term, that the Term of Employment shall not be
extended. In such event, the Term of Employment will end at its then scheduled
expiration date and shall not be further extended except by written agreement
of the Company and Executive.
3. Compensation.
3.1 Salary. During the Initial Term of Executive's employment under
the terms of this Agreement, the Company shall pay Executive a base salary
("Base Salary") at an initial rate of $750,000 per annum. Base Salary shall be
payable in accordance with the ordinary payroll practices of the Company.
During the Term of Employment, the Board shall, in good faith, review, at least
annually, the Executive's Base Salary in accordance with the Company's
customary procedures and practices regarding the salaries of senior executives
and may, if determined by the Board to be appropriate, increase Executive's
Base Salary following such review. Increases in the rate of salary, once
granted, shall not be subject to revocation or decrease thereafter, and "Base
Salary" for all purposes herein shall be deemed to be a reference to such
higher amount.
4. Employee Benefits.
4.1 Equity and Stock Options. Simultaneously with the execution of
this Agreement, the Company and Executive are entering into the Subscription
Agreement, the Option Agreement and the Stockholders' Agreement in the forms
attached hereto as Exhibits A, B and C, respectively (the "Ancillary
Documents"). Executive shall not be eligible to receive any stock option or
other equity incentive other than as set forth in the Ancillary Documents.
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4.2 Employee Benefit Programs, Plans and Practices. The Company shall
provide Executive while employed hereunder with coverage under such employee
benefits (commensurate with his position in the Company and to the extent
permitted under any employee benefit plan) in accordance with the terms
thereof, which the Company makes available to its senior executives.
4.3 Vacation. Executive shall be entitled to twenty (20) business days
paid vacation each calendar year, which shall be taken at such times as are
consistent with Executive's responsibilities hereunder. Any vacation days not
taken during the calendar year in which they are accrued may be carried over
into the next subsequent year.
5. Expenses. Subject to prevailing Company policy or such guidelines
as may be established by the Board, the Company will reimburse Executive for
all reasonable expenses incurred by Executive in carrying out his duties.
6. Termination of Employment.
6.1 Termination Not for Cause or for Good Reason. (a) The Company or
Executive may terminate Executive's Term of Employment at any time for any
reason by written notice at least thirty (30) days in advance. If Executive's
employment is terminated (i) by the Company other than for Cause (as defined in
Section 6.2(b) hereof), Disability (as defined in Section 6.3 hereof) or death
or (ii) by Executive for Good Reason (as defined in Section 6.1(b) hereof)
prior to the end of the Initial Term or any Renewal Term, the Company shall
continue to pay Executive's Base Salary through the end of the Initial Term or
the Renewal Term (the "Continuation Period"), as the case may be, with such
payments to be made in accordance with the terms of Section 3.1. (the
"Severance Payments"). In addition, the Company shall continue to provide
Executive during the Continuation Period with life insurance, medical and
hospitalization benefits (collectively, the "Continuation Benefits") comparable
to those provided to other senior executives; provided, however,
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that any such coverage shall terminate to the extent that Executive is offered
or obtains comparable life insurance, medical or hospitalization benefits
coverage from any other employer during the Continuation Period.
Notwithstanding the foregoing, if Executive breaches any provision of Section
11 hereof, the remaining balance of the Severance Payments and any Continuation
Benefits shall be forfeited. Executive shall be entitled to receive the
benefits, if any, provided under the employee benefit programs, plans and
practices referred to in Section 4.2, in accordance with their terms.
(b) For purposes of this Agreement, "Good Reason" shall mean any of
the following (without Executive's express prior written consent):
(i) A reduction by the Company in Executive's Base Salary (in which
event Severance Payments shall be made based upon Executive's Base Salary
in effect prior to any such reduction); or
(ii) Any material diminution or material adverse change in Executive's
titles, duties or responsibilities, unless due to a promotion or increased
responsibility of Executive.
(c) Termination by Executive for Good Reason shall be made by delivery
to the Company by Executive of written notice, given at least 45 days prior to
such termination, which sets forth the conduct believed to constitute Good
Reason; provided, however, that the Company shall have the opportunity to cure
the Good Reason during the first 30 days of such notice period and if the Good
Reason is cured within such 30-day period, Executive's notice of termination
shall be deemed withdrawn. If no notice is given within 90 days of the event
giving rise to Good Reason, the Good Reason shall be deemed waived.
6.2 Voluntary Termination by Executive; Discharge for Cause. (a) In
the event that Executive's employment is terminated (i) by the Company for
Cause, as hereinafter defined or (ii) by Executive other than for Good Reason,
Disability or death, Executive shall only be entitled to receive (A) any Base
Salary accrued but unpaid prior to such termination and (B) any
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benefits provided under the employee benefit programs, plans and practices
referred to in Section 4.2 hereof, in accordance with their terms. After the
termination of Executive's employment under this Section 6.2, the obligations
of the Company under this Agreement to make any further payments, or provide
any benefits specified herein, to Executive shall thereupon cease and
terminate.
(b) As used herein, the term "Cause" shall be limited to (i) gross
neglect of or willful and continuing refusal by Executive to substantially
perform Executive's duties hereunder (other than due to death or Disability, as
such term is defined in Section 6.3 hereof), (ii) any breach of the provisions
of Section 11 of this Agreement by Executive, (iii) willfully engaging in
conduct that is demonstrably injurious to the Company or the Company's
subsidiaries or affiliates by Executive or (iv) conviction of, or plea of nolo
contendere, by Executive to (a) any felony or (b) a misdemeanor involving moral
turpitude. Termination of Executive pursuant to this Section 6.2 shall be made
by delivery to Executive of written notice, given at least 30 days prior to
such Termination, from the Board specifying the particulars of the conduct by
Executive set forth in any of clauses (i) through (iv) above. Termination shall
be effected by a majority vote of the Board at a meeting at which Executive
shall have had the opportunity (along with counsel) to be heard unless within
30 days after receiving such notice, Executive shall have cured Cause to the
reasonable satisfaction of the Board; provided, however, that no cure shall be
possible if termination for Cause is made pursuant to this Section 6.2(b)(ii)
or (iv). As long as Executive is on the Board, he shall reasonably cooperate to
cause a valid Board meeting to occur.
6.3 Disability. In the event of the Disability (as defined below) of
Executive during the Term of Employment, the Company may terminate Executive's
Term of Employment upon written notice to Executive (or
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Executive's personal representative, if applicable) effective upon the date of
receipt thereof (the "Disability Commencement Date"). The obligation of the
Company to make any further payments under this Agreement shall, except for
earned but unpaid Base Salary, cease as of the Disability Commencement Date;
provided, however, that Executive shall continue to receive payments equal to
Executive's Base Salary otherwise payable under this Agreement for a period
equal to the lesser of (i) six months after the date of the occurrence of the
incapacity causing Executive's Disability and (ii) the number of months
otherwise remaining in the Term of Employment, in either case, reduced by the
amount of any disability payments otherwise payable to Executive under any
insurance program of the Company. The term "Disability," for purposes of this
Agreement, shall mean Executive's absence from the full-time performance of
Executive's duties pursuant to a reasonable determination made in accordance
with the Company's disability plan that Executive is disabled as a result of
incapacity due to physical or mental illness that lasts, or is reasonably
expected to last, for at least six months.
6.4 Death. In the event of Executive's death during his Term of
Employment hereunder or at any time thereafter while payments are still owing
to Executive under the terms of this Agreement, all obligations of the Company
to make any further payments, other than the obligation to pay any accrued but
unpaid Base Salary or remaining payments that were payable to Executive by
reason of his termination of employment under Section 6.1 to which Executive
was entitled at the time of his death, shall terminate upon Executive's death,
and benefits shall become payable under the Company's life and accidental death
insurance program in accordance with its terms. Benefits under all other
employee benefit programs, plans and practices shall be paid in accordance with
their terms.
6.5 No Further Notice or Compensation. Executive understands and
agrees that he shall not be entitled to any further notice or compensation
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upon Termination of Employment under this Agreement, other than amounts
specified in this Section 6 and the Ancillary Documents. Executive shall not
have any obligation to seek comparable employment following such termination or
resignation, nor shall any compensation received from any subsequent employment
reduce the Company's obligations hereunder.
6.6 Executive's Duty to Provide Materials. Upon the termination of the
Term of Employment for any reason, Executive or his estate shall surrender to
the Company all correspondence, letters, files, contracts, mailing lists,
customer lists, advertising materials, ledgers, supplies, equipment, checks,
and all other materials and records of any kind that are the property of the
Company or any of its subsidiaries or affiliates, that may be in Executive's
possession or under his control, including all copies of any of the foregoing;
provided, however, Executive shall not be required to surrender his personal
rolodex, telephone book, appointment book and personal materials acquired by
Executive prior to the date hereof.
7. Notices. All notices or communications hereunder shall be in
writing, addressed as follows:
To the Company:
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To Executive:
Xxxxx X. Xxxxx
00 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxxxxx
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Any such notice or communication shall be delivered by hand or by courier or
sent certified or registered mail, return receipt requested, postage prepaid,
addressed as above (or to such other address as such party may designate in a
notice duly delivered as described above), and the third business day after the
actual date of sending shall constitute the time at which notice was given.
8. Separability. If any provision of this Agreement shall be declared
to be invalid or unenforceable, in whole or in part, such invalidity or
unenforceability shall not affect the remaining provisions hereof which shall
remain in full force and effect.
9. Assignment. This contract shall be binding upon and inure to the
benefit of the heirs and representatives of Executive and the assigns and
successors of the Company, but neither this Agreement nor any rights or
obligations hereunder shall be assignable or otherwise subject to hypothecation
by Executive (except by will or, in the case of the Options, by trust for the
benefit of Executive's spouse and/or children or by operation of the laws of
intestate succession) or by the Company, except that the Company may assign
this Agreement to any successor (whether by merger, purchase or otherwise) to
all or substantially all of the stock, assets or businesses of the Company, if
such successor expressly agrees to assume the obligations of the Company
hereunder.
10. Amendment. This Agreement may only be amended by written agreement
of the parties hereto.
11. Nondisclosure of Confidential Information: Non-Competition. (a)
While employed by the Company, and at any time thereafter, the Executive shall
not, without the prior written consent of the Company, use, divulge, disclose
or make accessible to any other person, firm, partnership, corporation or other
entity any Confidential Information pertaining to the business of the Company
or any of its affiliates, except (i) while employed
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by the Company, in the business of and for the benefit of the Company or (ii)
when required to do so by applicable law, by a court, by any governmental
agency, or by any administrative body or legislative body (including a
committee thereof); provided, however, that Executive shall give reasonable
notice under the circumstances to the Company that he has been notified that he
will be required to so disclose as soon as possible after receipt of such
notice in order to permit the Company to take whatever action it reasonably
deems necessary to prevent such disclosure and Executive shall cooperate with
the Company to the extent that it reasonably requests him to do so. For
purposes of this Section 11(a), "Confidential Information" shall mean
non-public information concerning the financial data, strategic business plans,
product development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential information
of the Company, its subsidiaries, its affiliates or customers, that, in any
case, is not otherwise available to the public (other than by Executive's
breach of the terms hereof).
(b) In consideration of the Company's obligations under this
Agreement, Executive agrees that during the period of his employment hereunder
and for a period of twelve (12) months thereafter, without the prior written
consent of the Board, (A) he will not, directly or indirectly, either as
principal, manager, agent, consultant, officer, stockholder, partner, investor,
lender or employee or in any other capacity, carry on, be engaged in or have
any financial interest in, any entity which is in competition with the business
of the Company or its subsidiaries and (B) he shall not, on his own behalf or
on behalf of any person, firm or company, directly or indirectly, solicit or
offer employment to any person who is or has been employed by the Company or
its subsidiaries at any time during the twelve (12) months immediately
preceding such solicitation; provided, however, that if the Executive's
employment terminates following the
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expiration of the Initial Term, this subsection 11(b) shall only be effective
during the period, if any, that the Company pays the Executive the Severance
Payments.
(c) For purposes of this Section 11, an entity shall be deemed to be
in competition with the Company if it is principally involved in the purchase,
sale or other dealing in any property or the rendering of any service
purchased, sold, dealt in or rendered by the Company as a part of the business
of the Company within the same geographic area in which the Company effects
such sales or dealings or renders such services. Notwithstanding this
subsection 11(c) or subsection 11(b), nothing herein shall (i) prohibit
Executive from serving as an officer, employee or independent consultant of any
business unit or subsidiary which would not otherwise be in competition with
the Company or its subsidiaries, but which business unit is a part of, or which
subsidiary is controlled by, or under common control with, an entity that would
be in competition with the Company or its subsidiaries, so long as Executive
does not engage in any activity which is in competition with any business of
the Company or its subsidiaries or (ii) be construed so as to preclude
Executive from investing in any publicly or privately held company, provided
Executive's beneficial ownership of any class of such company's securities does
not exceed 5% of the outstanding securities of such class.
(d) Executive agrees that this covenant not to compete is reasonable
under the circumstances and will not interfere with his ability to earn a
living or to otherwise meet his financial obligations. Executive and the
Company agree that if in the opinion of any court of competent jurisdiction
such restraint is not reasonable in any respect, such court shall have the
right, power and authority to excise or modify such provision or provisions of
this covenant as to the court shall appear not reasonable and to enforce the
remainder of the covenant as so amended. Executive agrees that any breach of
the covenants contained in this Section 11 would
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irreparably injure the Company. Accordingly, Executive agrees that, in the
event the Company determines that Executive has breached the covenants
contained in this Section 11, the Company may, in addition to pursuing any
other remedies it may have in law or in equity, cease making any payments
otherwise required by this Agreement and obtain an injunction against Executive
from any court having jurisdiction over the matter restraining any further
violation of this Agreement by Executive.
12. Beneficiaries; References. Executive shall be entitled to select
(and change, to the extent permitted under any applicable law) a beneficiary or
beneficiaries to receive any compensation or benefit payable hereunder
following Executive's death, and may change such election, in either case by
giving the Company written notice thereof. In the event of Executive's death or
a judicial determination of his incompetence, reference in this Agreement to
Executive shall be deemed, where appropriate, to refer to his beneficiary,
estate or other legal representative. Any reference to the masculine gender in
this Agreement shall include, where appropriate, the feminine.
13. Survivorship. The respective rights and obligations of the parties
hereunder shall survive any termination of this Agreement to the extent
necessary to the intended preservation of such rights and obligations. The
provisions of this Section 13 are in addition to the survivorship provisions of
any other section of this Agreement.
14. Dispute Resolution; Legal Fees. Any dispute or controversy arising
under or in connection with this Agreement shall be resolved by the court with
the appropriate jurisdiction in the State of New York. The prevailing party
shall be entitled to be reimbursed for any reasonable legal fees and other fees
and expenses which may be incurred in respect of enforcing its respective
rights under this Agreement.
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15. Governing Law. This Agreement shall be construed, interpreted and
governed in accordance with the laws of the State of New York, without
reference to rules relating to conflicts of law.
16. Effect on Prior Agreements. This Agreement and the Ancillary
Documents contain the entire understanding between the parties hereto and
supersedes in all respects any prior or other agreement or understanding, both
written and oral, between the Company, any affiliate of the Company or any
predecessor of the Company or affiliate of the Company and Executive.
17. Withholding. The Company shall be entitled to withhold from
payment any amount of withholding required by law.
18. Survival. Notwithstanding the expiration of the term of this
Agreement, the provisions of Section 11 hereunder shall remain in effect as
long as is reasonably necessary to give effect thereto in accordance with the
terms hereof.
19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original.
L-3 Communications Holdings, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President, Finance and Controller
/s/ Xxxxx X. Xxxxx
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EXHIBIT A
COMMON STOCK SUBSCRIPTION AGREEMENT
COMMON STOCK SUBSCRIPTION AGREEMENT, dated as of April 30, 1997
between L-3 Communications Holdings, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxx (the "Purchaser").
WHEREAS, the Company was recently incorporated for the purpose of
consummating the transactions (the "Transactions") contemplated by the
Transaction Agreement (as defined below); and
WHEREAS, the Purchaser desires to subscribe for and acquire from the
Company, and the Company desires to issue and sell to the Purchaser, the number
of shares of Class B Common Stock, par value $.01 per share (the "Class B Common
Stock"), of the Company set forth on Schedule I, as hereinafter set forth.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions
"Active Trading Market" shall mean, as to the Company's common
stock, that the Company's common stock is listed or quoted on a national
exchange or the NASDAQ National Market.
"Affiliate", as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control with,
that Person. For the purposes of this definition "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities, by
contract or otherwise.
"Board of Directors" shall mean the Board of Directors of the
Company.
"Cause" shall have the meaning given such term in the Employment
Agreement.
"Change of Control" shall mean an acquisition of all or
substantially all of the direct and indirect assets of the Company and its
subsidiaries (by merger, consolidation, stock or asset sale or otherwise),
unless immediately following any such transaction Xxxxxx and LBHI and Lockheed
Xxxxxx and their Affiliates own 50% or more of the combined voting power of the
then outstanding voting securities entitled to vote generally of the Company or
the acquiror of such assets, as the case may be.
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"Class A Common Stock" shall mean the Class A Common Stock, par
value $.01 per share, of the Company.
"Class B Common Stock" shall have the meaning set forth in the
recitals of this Agreement.
"Class C Common Stock" shall mean the Class C Common Stock, par
value $.01 per share, of the Company.
"Common Stock" shall mean the Class A Common Stock, Class B Common
Stock and Class C Common Stock.
"Cost of the Common Stock" shall mean as at any date $5.00 per
share, as appropriately adjusted for stock splits, subdivisions, combinations
and similar transactions; provided that in the event any of the Shares Subject
to Forfeiture are forfeited, the Cost of the Common Stock shall be an amount per
share equal to $15,000,000 divided by the total number of shares of Class B
Common Stock purchased hereunder minus the number of Shares Subject to
Forfeiture that have been forfeited.
"Disability" shall have the meaning given such term in the
Employment Agreement.
"Employment Agreement" shall mean the Employment Agreement dated the
date hereof between the Purchaser and the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exercise Price" shall have the meaning given such term in the
Option Agreement.
"Forfeiture Event" shall have the meaning set forth in Section 5.1.
"FMV per Share" shall mean (i) if determined upon a Public Offering,
the offering price per share of common stock; (ii) if determined upon a Change
of Control, the value of the equity of the Company divided by the total number
of outstanding shares of common stock of the Company; and (iii) otherwise, the
fair market value of the equity of the Company, as determined by the Board of
Directors in good faith (based on the opinion of an independent
nationally-recognized investment banking firm), divided by the total number of
outstanding shares of common stock of the Company; provided, however, that in
the case of clause (iii) above if there is an Active Trading Market for the
shares of any class of the Common Stock at the time of the determination of the
FMV per Share, FMV per Share shall be the average of the closing prices of such
Shares for the 20 trading days immediately preceding such determination date.
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"Initial Public Offering" shall mean the initial Public Offering
(other than pursuant to a registration statement on Form S-8 or otherwise
relating to equity securities issuable under any employee benefit plan of the
Company).
"Good Reason" shall have the meaning given such term in the
Employment Agreement.
"Initial Holders of Class B Common Stock" shall mean the Purchaser
and XxXxxxx.
"XxXxxxx" shall mean Xxxxxx X. XxXxxxx.
"LBHI" shall mean Xxxxxx Brothers Holdings Inc., a Delaware
corporation and the general partner of Xxxxxx.
"Xxxxxx" shall mean Xxxxxx Brothers Capital Partners III, L.P., a
Delaware limited partnership.
"Lockheed Xxxxxx" shall mean Lockheed Xxxxxx Corporation, a Maryland
corporation.
"Options" shall mean the options to purchase Class A Common Stock
granted to the Purchaser pursuant to the Nonqualified Stock Option Agreement
dated as of the date hereof.
"Option Shares" shall mean the shares of Class A Common Stock
received by the Purchaser upon the exercise of any Options.
"Permitted Transferee" shall mean as to the Purchaser and his
Permitted Transferees, his or her spouse or any of his or her lineal descendants
or legatees or a testamentary trust for such legatees, or a trust or individual
retirement account, the beneficiaries of which or a corporation or partnership
the stockholders or partners of which include only the Purchaser, his or her
spouse and his or her lineal descendants or a corporation or partnership wholly
owned by them.
"Person" shall mean an individual, partnership, corporation,
business trust, joint stock company, limited liability company, unincorporated
association, joint venture or other entity of whatever nature.
"Public Offering" shall mean the sale of shares of any class of the
Company's common stock to the public pursuant to an effective registration
statement (other than a registration statement on Form S-4 or S-8 or any similar
or successor form) filed under the Securities Act which results in an Active
Trading Market of 25% or more of the outstanding shares of the Company's common
stock.
"Purchaser's Group" shall have the meaning given such term in
Section 4.1.
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"Put/Call Percentage" shall mean, initially, 75%, and such Put/Call
Percentage shall be reduced by 15 percentage points on each anniversary
(including the first) of the Closing Date.
"Restriction Lapse" shall have the meaning set forth in Section 5.2.
"Retirement" shall mean normal retirement under the terms of any
tax-qualified retirement plan of the Company, which retirement occurs more than
three years after the Closing Date. Any purported retirement by the Purchaser
prior to the third anniversary of the Closing Date shall be treated, for
purposes of this Agreement, the same as a termination without Good Reason.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"SEC" shall mean the Securities and Exchange Commission.
"Shares Subject to Forfeiture" shall mean 300,000 (as such number
may be subsequently adjusted pursuant to Section 6.1) shares of the Class B
Common Stock purchased pursuant hereto.
"Stockholder" shall mean each of Lockheed Martin, Lehman, LBHI, the
Purchaser and Xxxxx and any other person who becomes party to the Stockholders
Agreement pursuant to the terms thereof.
"Stockholders Agreement" shall mean the Stockholders Agreement dated
as of the date hereof among the Company, Xxxxxx, LBHI, Lockheed Xxxxxx, the
Purchaser and XxXxxxx.
"Termination of Employment" shall mean a termination of the
Purchaser's employment with the Company (regardless of the reason therefor).
"Transaction Agreement" shall mean the Transaction Agreement dated
as of March 28, 1997, as amended, by and among the Company, Xxxxxx, Lockheed
Xxxxxx, the Purchaser and XxXxxxx.
"Transactions" shall have the meaning set forth in the recitals of
this Agreement.
2. Subscription for and Purchase of Common Stock.
2.1 Purchase of Common Stock. Pursuant to the terms and subject to
the conditions set forth in this Agreement, the Purchaser hereby subscribes for
and agrees to purchase, and the Company hereby agrees to issue and sell to the
Purchaser, on the Closing Date (as defined in Section 2.2), the number of shares
of Class B Common Stock at a price per share as set forth on Schedule I, for the
aggregate amount (the "Purchase Price") set forth on Schedule I.
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2.2 The Closing. The closing (the "Closing") of the purchase of the
Common Stock shall take place simultaneously with and at the same location as
the consummation of the Transactions (the "Closing Date"). The Closing shall
occur at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, or at such other place as the parties may mutually agree.
At the Closing, the Company will deliver to the Purchaser one or more duly
executed stock certificates, registered in the Purchaser's name and representing
the shares of Class B Common Stock purchased pursuant to Section 2.1, against
payment of the Purchase Price therefor by delivery to the Company of immediately
available funds in the amount of the Purchase Price representing payment in full
for such Class B Common Stock.
2.3 Conditions to the Obligations of the Parties Hereunder. The
obligations of the parties hereto shall be subject to the condition that,
substantially simultaneously with the sale to the Purchaser of the Class B
Common Stock, the Company shall have received the proceeds of the additional
equity and debt financing contemplated by, and necessary to consummate, the
Transactions and the Transactions shall have been consummated concurrently
therewith.
2.4 Representations and Warranties of the Company. The Company
represents and warrants to the Purchaser as follows:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Company has full
corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder, and this Agreement has been duly
authorized, executed and delivered by the Company and is valid, binding
and enforceable against the Company in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the rights of
creditors generally and by general principles of equity;
(b) The Class B Common Stock to be issued to the Purchaser pursuant
to this Agreement has been duly authorized, and when issued and delivered
in accordance with the terms hereof, will be duly and validly issued and,
upon receipt by the Company of the funds equal to the Purchase Price, will
be fully paid and nonassessable; and
(c) None of the execution, delivery or performance of this Agreement
by the Company will conflict with the Company's certificate of
incorporation or by-laws or result in any breach of any terms or
provisions of, or constitute a default under, any contract, agreement or
instrument to which the Company is a party or by which the Company is
bound.
6
3. Investment Representations and Covenants of the Purchaser.
3.1 Investment Intention; No Resales. The Purchaser hereby
represents and warrants that the Purchaser is acquiring the Class B Common Stock
and will be acquiring the Option Shares for investment solely for its own
account and not with a view to, or for resale in connection with, the
distribution or other disposition thereof. The Purchaser agrees and acknowledges
that it will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any shares of the Class B Common Stock or
Option Shares, or solicit any offers to purchase any shares of the Class B
Common Stock or Option Shares, unless such transfer, sale, assignment, pledge,
hypothecation or other disposition (a) is pursuant to an effective registration
statement under the Securities Act and has been registered under all applicable
state securities or "blue sky" laws or is pursuant to an available exemption
from registration and (b) complies with the provisions of this Agreement and the
Stockholders Agreement.
3.2 Transfers. The foregoing notwithstanding, the Company
acknowledges and agrees that the Purchaser may make any transfer to any
transferee in accordance with the provisions of the Stockholders Agreement and
Section 6.2 hereof, and that such transfers to a transferee shall be deemed to
be in compliance with this Agreement; provided that except as otherwise provided
in the Stockholders Agreement, none of the shares of Class B Common Stock or
Option Shares may be transferred prior to the fifth anniversary of the Closing
Date.
3.3 Accredited Investor. The Purchaser hereby represents and
warrants to the Company that it is an "accredited investor" as that term is
defined in Rule 501 of Regulation D under the Securities Act.
3.4 Legend. (a) Each certificate representing shares of Common Stock
and Option Shares shall bear substantially the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE OFFERED AND SOLD ONLY
IF SO REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
THE SHARES REPRESENTED BY THIS CERTIFICATE ALSO ARE SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDERS AGREEMENT AND
COMMON STOCK SUBSCRIPTION AGREEMENT, EACH DATED AS OF APRIL 30, 1997,
COPIES OF WHICH MAY BE OBTAINED FROM L-3 COMMUNICATIONS HOLDINGS, INC.
(THE "COMPANY"). NO TRANSFER OF SUCH SHARES WILL BE MADE ON THE BOOKS OF
THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF
SUCH AGREEMENTS.
7
3.5 Common Stock Unregistered. The Purchaser acknowledges and
represents that he has been advised by the Company that (a) the offer and sale
of the Class B Common Stock and the Option Shares have not been registered under
the Securities Act; (b) the Class B Common Stock and the Option Shares must be
held indefinitely and the Purchaser must continue to bear the economic risk of
the investment in the Class B Common Stock unless the offer and sale of such
Class B Common Stock or Option Shares is subsequently registered under the
Securities Act and all applicable state securities laws or an exemption from
such registration is available; (c) there is no established market for the Class
B Common Stock or Option Shares and it is not anticipated that there will be any
public market for the Class B Common Stock or Option Shares in the foreseeable
future; (d) Rule 144 promulgated under the Securities Act is not presently
available with respect to the sale of any securities of the Company, and, except
as set forth in Section 3.6, the Company has made no covenant to make such Rule
available; (e) when and if shares of the Class B Common Stock or Option Shares
may be disposed of without registration under the Securities Act in reliance on
Rule 144, such disposition can be made only in limited amounts in accordance
with the terms and conditions of such Rule; (f) if the Rule 144 exemption is not
available, public offer or sale without registration will require compliance
with Regulation A or the availability of an exemption under the Securities Act;
(g) a restrictive legend in the form heretofore set forth shall be placed on the
certificates representing the Class B Common Stock or Option Shares; and (h) a
notation shall be made in the appropriate records of the Company indicating that
the Class B Common Stock and the Option Shares are subject to restrictions on
transfer and, if the Company should at some time in the future engage the
services of a securities transfer agent, appropriate stop-transfer instructions
will be issued to such transfer agent with respect to the Class B Common Stock
and the Option Shares.
3.6 Rule 144. If the Company shall have filed a registration
statement with respect to the Class B Common Stock or the Option Shares pursuant
to the requirements of Section 12 of the Exchange Act or a registration
statement with respect to the Class B Common Stock or the Option Shares pursuant
to the requirements of the Securities Act (or a registration statement shall
have been filed, in either case, with respect to the Class A Common Stock or
Class C Common Stock if any shares of the Class B Common Stock have been
converted into such other class of Common Stock), the Company will file the
reports required to be filed by it under the Securities Act and the Exchange Act
to the extent required from time to time to enable the Purchaser to sell shares
of Class B Common Stock or the Option Shares, as the case may be (or Class C
Common Stock or Class A Common Stock if any shares of the Class B Common Stock
have been converted into such other class of Common Stock), without registration
under the Securities Act within the limitation of the exemptions provided
8
by (a) Rule 144 under the Securities Act, as such Rule may be amended from time
to time, or (b) any similar rule or regulation hereafter adopted by the SEC. If
any shares of Class B Common Stock or Option Shares (or Class A Common Stock or
Class C Common Stock if any shares of the Class B Common Stock have been
converted into such other class of Common Stock) are to be disposed of in
accordance with Rule 144 under the Securities Act or otherwise, the Purchaser
shall promptly notify the Company of such intended disposition and deliver to
the Company at or prior to the time of such disposition such documentation as
the Company may reasonably request in connection with such sale and, in the case
of a disposition in accordance with Rule 144, an executed copy of Form 144
required to be filed with the SEC (if required by Rule 144). Anything to the
contrary contained in this Section 3.6 notwithstanding, the Company may
deregister any of its securities under the Exchange Act if it is then permitted
to do so pursuant to the Exchange Act.
3.7 Additional Investment Representations. The Purchaser further
represents and warrants that (a) in making his decision to purchase the Common
Stock hereby subscribed for or exercise his options to purchase the Option
Shares, the Purchaser has relied upon independent investigations made by him
and, to the extent believed by the Purchaser to be appropriate, his
representatives, including his own professional, financial, tax and other
advisors; and (b) the Purchaser has been given the opportunity to examine all
documents and to ask questions of, and to receive answers from, the Company and
its representatives concerning the terms and conditions of the purchase of the
Class B Common Stock and to obtain any additional information which the
Purchaser deems necessary.
3.8 Other Agreements. On the date hereof, the Stockholders
Agreement, in the form previously delivered to the Purchaser, will be entered
into by the Company, the Purchaser and other parties thereto.
4. Puts and Calls
4.1 Company's Right to Purchase. (a) In the event of any Termination
of Employment (i) by the Company without Cause, (ii) due to resignation by the
Purchaser with Good Reason or (iii) due to the Purchaser's Retirement, the
Company shall have the right to purchase, and the Purchaser and his Transferees
(hereinafter referred to as the "Purchaser's Group") shall be required upon
exercise of such right to sell to the Company (or its designee), a number of
shares of the Class B Common Stock or Class C Common Stock, as the case may be,
and the Option Shares equal to the total number of shares of the Class B Common
Stock and the Option Shares held by the Purchaser's Group times the Put/Call
Percentage in effect as of the date of Termination of Employment at a per share
price equal to the FMV per Share as of the date of such Termination of
Employment.
9
(b) In the event of any Termination of Employment due to death of
the Purchaser or Disability of the Purchaser, the Company shall have the right
to purchase, and the Purchaser's Group shall be required upon exercise by the
Company of such right to sell to the Company (or its designee) all of the Class
B Common Stock or Class C Common Stock, as the case may be, and Option Shares
held by the Purchaser Group at a per share price equal to the FMV per Share as
of the date of such Termination of Employment; provided that in the event of the
death of the Purchaser, the Purchaser's executors, administrators, testamentary
trustees, legatees or beneficiaries may elect to retain 20% of the Class B
Common Stock.
(c) In the event of any Termination of Employment for Cause or
resignation by the Purchaser without Good Reason, the Company shall have the
right and option to purchase, and the Purchaser's Group shall be required upon
exercise by the Company of such right to sell to the Company, all of the Class B
Common Stock or Class C Common Stock, as the case may be, and the Option Shares
held by the Purchaser's Group at a per share price equal to the lesser of (i) in
the case of the Class B Common Stock, the Cost of the Common Stock plus interest
thereon accrued from the Closing Date at a rate equal to the appropriate
applicable federal rate as determined under Section 1274(d) of the Internal
Revenue Code of 1986, as amended, or, in the case of Option Shares, the price
paid upon exercise of the Option with respect to such Option Shares and (ii) the
FMV per Share as of the date of such Termination of Employment.
(d) If the Company desires to exercise its right to purchase all of
the Class B Common Stock or Class C Common Stock, as the case may be, and Option
Shares following any Termination of Employment, the Company shall not later than
75 days after the date of such Termination of Employment send written notice to
the Purchaser and each member of the Purchaser's Group of its intention to
purchase such Class B Common Stock or Class C Common Stock, as the case may be,
and Option Shares. If the Company decides not to exercise such right, the
Company shall not later than 75 days after the date of such Termination of
Employment send written notice to the Purchaser and each member of the
Purchaser's Group of its intention not to exercise such right. The closing of
such purchase shall take place at the principal office of the Company within 30
days after the giving of such written notice by the Company. The Company's
rights to purchase under this Section 4.1 may not be exercised in part.
4.2 Purchaser's Right to Put. (a) In the event of any Termination of
Employment (i) by the Company without Cause, (ii) due to resignation by the
Purchaser with Good Reason or (iii) the Purchaser's Retirement, the Purchaser's
Group shall have the right to put to the Company, and the Company shall be
required upon exercise of such right to purchase (or cause its designee to
purchase) a number of shares of Class B Common Stock or Class C Common Stock, as
the case may be, and the shares equal to the
10
total number of shares of Class B Common Stock or Class C Common Stock, as the
case may be, and the Option Shares held by the Purchaser's Group times the
Put/Call Percentage in effect as of the date of Termination of Employment at a
per share price equal to the FMV per Share as of the date of such Termination of
Employment.
(b) In the event of any Termination of Employment due to Disability
of the Purchaser or death of the Purchaser, the Purchaser's Group shall have the
right to put to the Company, and the Company shall be required upon exercise of
such right to purchase (or cause its designee to purchase) all of the Class B
Common Stock or Class C Common Stock, as the case may be, and Option Shares held
by the Purchaser's Group at a per share price equal to the FMV per Share as of
the date of such Termination of Employment.
(c) The rights of the Purchaser's Group under Section 4.2(a) and (b)
may only be exercised by holders of not less than a majority of the total shares
of Class B Common Stock or Class C Common Stock, as the case may be, and Option
Shares held by the Purchaser's Group and the decision to exercise such rights
will be binding upon each member of the Purchaser's Group. If the Purchaser's
Group desires to exercise its rights pursuant to this Section 4.2 following any
Termination of Employment, the Purchaser's Group shall give written notice of
such intent to the Company no later than the earlier of (i) 90 days after the
Company gives notice that it will not exercise its rights under Section 4.1 and
(ii) 15 days after the expiration of the Company's rights under Section 4.1. The
closing of such purchase shall take place at the principal office of the Company
within 30 days after the giving of such written notice to the Company. The
Purchaser's Group's rights to put under this Section 4.2 may not be exercised in
part.
4.3 Payment of Purchase Price by the Company. Notwithstanding the
foregoing, the Company shall not be required to purchase for cash any shares of
Common Stock pursuant to Section 4.1 or 4.2 if (a) such purchase would be or
would result in a violation by the Company or any of its subsidiaries of (i) the
terms of any debt agreements or other documents related thereto to which the
Company or any of its subsidiaries is a party or (ii) applicable law or (b) the
Board of Directors (excluding Messrs. Xxxxx and XxXxxxx or their respective
nominees) unanimously determines that such purchase would be reasonably likely
to materially impact the Company's available cash, require unsuitable additional
debt to be incurred or otherwise have a material adverse effect on the financial
condition of the Company. If the Company is precluded from paying for all or any
portion of the shares of Common Stock in cash pursuant to the preceding
sentence, the Company shall issue a subordinated note to the Purchaser in
respect of the shares not purchased for cash or a member of the Purchaser's
Group which note shall be repaid in cash (i) from the proceeds obtained by
11
the Company from the sale of Common Stock in an Initial Public Offering and (ii)
at such time that the Board of Directors determines that the conditions
described in the preceding sentence no longer exist; provided, that such note
shall (A) bear pay-in-kind interest at a rate per annum which, in the opinion of
an independent, mutually acceptable nationally-recognized investment banking
firm, will result in such note having a fair market value on the date of
issuance equal to the aggregate principal amount thereof, (B) be payable in full
on April 30, 2007 except as otherwise provided herein, (C) be subordinated to
the Company's obligations under any guarantee of any bank credit obligations of
its subsidiaries and (D) contain such other covenants, events of default and
other terms and conditions customary for notes of that kind. If in connection
with the exercise of rights pursuant to Section 4.1 or 4.2, the Company is
required to issue a subordinated note, at the request of the Purchaser (or the
holders of not less than a majority of the total number of shares of Class B
Common Stock, Class C Common Stock and Option Shares held by the Purchaser's
Group), the Company (by action of the Board of Directors) will in good faith
endeavor to cause L-3 Communications Corporation ("L-3") to purchase the shares
to be purchased pursuant to Section 4.1 or 4.2 in exchange for the issuance of a
subordinated note so long as such purchase is permitted by the terms of any debt
agreements or other documents related thereto to which L-3 or any of its
subsidiaries is a party; provided that in no event shall the Company (or the
Board) be required to cause L-3 to purchase such shares unless in its judgment
such purchase on the terms set forth herein would not have a material adverse
impact on L-3's ability to raise debt financing on commercially reasonable
terms. Any subordinated note issued by L-3 pursuant to the foregoing shall
contain such covenants, events of default and other terms and conditions
customary for notes of that kind, including terms described in (A)-(C) above,
except that (i) interest on such note shall be payable in cash and (ii) such
note shall be payable in full on August 15, 2007 except as otherwise provided
herein and shall be subordinated to L-3's obligations under any bank credit
obligations or senior subordinated debt. In the event that the Company is
precluded from paying for all or any portion of the shares of Common Stock in
cash because such purchase would be or would result in a violation by the
Company or any of its subsidiaries of the terms of any debt agreements or other
documents related thereto to which the Company or any of the subsidiaries is a
party, the Company shall use its reasonable best efforts to obtain, or cause any
such subsidiary to obtain, a waiver under such debt agreements or other
agreements of such term or terms to allow the Company to pay for all or any
portion of the shares of Common Stock in cash.
4.4 Termination of Put/Call Rights. The rights and obligations set
forth in this Section 4 shall lapse upon a Public Offering.
12
5. Shares Subject to Forfeiture
5.1 Forfeiture Events. If prior to the third anniversary of the
Closing Date, there is a Termination of Employment of the Purchaser for Cause or
the Purchaser resigns without Good Reason or retires, then all of the Shares
Subject to Forfeiture shall be forfeited (whether or not then held by Purchaser)
(each such event, a "Forfeiture Event").
5.2 Lapse of Forfeiture Restrictions. (a) The Shares Subject to
Forfeiture shall no longer be subject to forfeiture upon the earliest to occur
of the following events (each such event, a "Restriction Lapse"): (i) the date
of death of the Purchaser; (ii) the date of Disability of the Purchaser; (iii)
the date that the Purchaser resigns for Good Reason or is terminated without
Cause; (iv) the date that the Company consummates a Public Offering at a FMV per
Share of at least $6.47; (v) the date of the closing of a transaction resulting
in a Change of Control or any other transaction involving the acquisition by a
Person other than an Affiliate of Xxxxxx of shares of Class A Common Stock
representing 10% or more of the Class A Common Stock held by Xxxxxx and LBHI
(and their Permitted Transferees, as such term is defined in the Stockholders
Agreement) on the Closing Date), in each case yielding a price per share in such
transaction of at least $6.47; (vi) the first date following a Public Offering
that the FMV per Share based on the average of the closing sales prices for the
20 trading days prior to such date equals or exceeds $6.47; or (vii) the date of
consummation of a transaction referred to in Section 5.1(ii)(c). Shares Subject
to Forfeiture shall be deemed no longer subject to forfeiture immediately prior
to the occurrence of the Restriction Lapse referred to in clause (iv) or (v) of
this Section 5.2.
(b) Notwithstanding the foregoing, the Shares Subject to Forfeiture
shall no longer be subject to forfeiture on the date that is nine years after
the Closing Date (but only to the extent that the Shares Subject to Forfeiture
have not previously been forfeited). Any such lapse of the restrictions on the
Shares Subject to Forfeiture pursuant to this Section 5.2(b) shall be a
"Restriction Lapse".
5.3 Conversion. (a) Upon the later to occur of (i) the consummation
of the Initial Public Offering and (ii) such time as there shall have occured a
Forfeiture Event or Restriction Lapse as to both of the Initial Holders of Class
B Common Stock, all of the Class B Common Stock held by the Purchaser's Group
shall be converted to shares of Class A Common Stock in accordance with the
terms of the Certificate of Incorporation of the Company.
(b) Upon the occurrence of a Forfeiture Event or Restriction Lapse
with respect to the Purchaser that occurs prior to both the consummation of the
Initial Public Offering and the occurrence of a Forfeiture Event or Restriction
Lapse with
13
respect to the other Initial Holder of Class B Common Stock, all of the Class B
Common Stock held by the Purchaser's Group shall be converted to shares of Class
C Common Stock in accordance with the terms of the Certificate of Incorporation
of the Company.
6. Miscellaneous.
6.1 Recapitalization, Exchanges, Etc., Affecting Common Stock. The
provisions of this Agreement shall apply, to the full extent set forth herein,
to any and all shares of capital stock of the Company or any successor or assign
of the Company (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect or upon conversion of, in exchange for, or in
substitution of the Class B Common Stock purchased pursuant hereto (or the Class
A Common Stock or Class C Common Stock to which such Class B Common Stock has
been converted, as the case may be) and the Option Shares, by reason of any
stock dividend, stock split, reverse stock split, combination, recapitalization,
reclassification, merger, consolidation or otherwise. In the event that any of
the foregoing events shall occur, then and in each such case, the number of
shares and price per share of Class B Common Stock purchased pursuant to this
Agreement (or the Class A Common Stock or Class C Common Stock to which such
Class B Common Stock has been converted, as the case may be) and any terms of
this Agreement referring to such number of shares or price per share and the
number of Option Shares received by the Purchaser upon the exercise of any
Options shall, in each such case, be equitably and appropriately adjusted.
6.2 Binding Effect. The provisions of this Agreement shall be
binding upon and accrue to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns. In the case of
a transferee permitted under Section 3.2 hereof, such transferee shall be deemed
to be the Purchaser hereunder; provided, however, that no transferee (including,
without limitation, transferees referred to in Section 3.2 hereof) shall derive
any rights under this Agreement unless and until such transferee has delivered
to the Company a valid undertaking and becomes bound by the terms of this
Agreement.
6.3 Amendment. This Agreement may be amended only by a written
instrument signed by the Company and holders of a majority of the Class B Common
Stock purchased pursuant hereto and the Option Shares, and any such amendment
shall be effective against the Company and all holders of the Class B Common
Stock and Option Shares.
6.4 Applicable Law. The laws of the State of New York shall govern
the interpretation, validity and performance of the terms of this Agreement.
14
6.5 Notices. All notices and other communications provided for
herein shall be in writing and shall be deemed to have been duly given if
delivered by hand (whether by overnight courier or otherwise) or sent by
registered or certified mail, return receipt requested, postage prepaid, to the
party to whom it is directed:
(a) If to the Company, to it at the following address:
L-3 Communications Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
(b) if to the Purchaser, to it at the following address:
Xxxxx X. Xxxxx
L-3 Communications Holdings, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Fried, Frank, Harris, Xxxxxxx and Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
or at such other address as either party shall have specified by notice in
writing to the other.
6.6 Integration. This Agreement and the documents referred to herein
or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to the subject matter hereof. There
are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than
those expressly set forth herein and in the Stockholders Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to this subject matter other than such agreements and
understandings set forth in the Stockholders Agreement.
15
6.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and of which together
shall constitute one and the same instrument.
6.8 Specific Performance. Each of the parties hereto acknowledges
and agrees that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto will waive the defense
in any action for specific performance that a remedy at law would be adequate
and that the parties hereto, in addition to any other remedy to which they may
be entitled at law or in equity, shall be entitled to compel specific
performance of this Agreement.
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
L-3 COMMUNICATIONS HOLDINGS, INC.
By: ___________________________
Name:
Title:
XXXXX X. XXXXX
_________________________________
SCHEDULE I
Number of Shares
of Class B Common Purchase Price
Stock Per Share Aggregate Amount
----------------- -------------- ----------------
1,500,000 $5.00 $7,500,000
EXHIBIT B
Option Agreement Form - Please see Exhibit 10.9 to the Registration Statement.
EXHIBIT C
Stockholders' Agreement Form - Please see Exhibit 10.3 to the Registration
Statement.
