STOCKHOLDERS AGREEMENT
dated July 10, 2000
among
LogiMetrics, Inc.
L-3 Communications Corporation
and
the Existing Holders named herein
TABLE OF CONTENTS
PAGE
ARTICLE I REPRESENTATIONS AND WARRANTIES.............................................................1
Section 1.1. Representations and Warranties of the Company.....................................1
Section 1.2. Representations and Warranties of Existing Holders................................1
ARTICLE II ACTIONS BY EXISTING HOLDERS................................................................2
Section 2.1. Amendment of Class A Debentures and Class B Debentures............................2
Section 2.2. Consent, Conversion of Securities and Waivers by Existing Holders.................3
Section 2.3. Warrants Held by Existing Holders.................................................5
ARTICLE III MANAGEMENT COVENANTS.......................................................................6
Section 3.1. Nomination and Election of Directors..............................................6
Section 3.2. Replacement of Directors..........................................................7
Section 3.3. Certain Covenants.................................................................8
Section 3.4. Committees of the Board...........................................................8
Section 3.5. Proxies...........................................................................8
Section 3.7. SEA Section 14(f) and Rule 14f-1..................................................8
ARTICLE IV TRANSFERS.................................................................................10
Section 4.1. Right of First Offer.............................................................10
Section 4.2. Legend...........................................................................11
ARTICLE V MISCELLANEOUS.............................................................................12
Section 5.1. Notices..........................................................................12
Section 5.2. Governing Law; Consent to Jurisdiction...........................................14
Section 5.3. Assignment; Successors and Assigns; No Third Party Rights........................14
Section 5.4. Counterparts.....................................................................14
Section 5.5. Titles and Headings..............................................................15
Section 5.6. Entire Agreement.................................................................15
Section 5.7. Severability.....................................................................15
Section 5.8. No Strict Construction...........................................................15
Section 5.9. Acknowledgement..................................................................15
Section 5.10. Effectiveness; Termination.......................................................15
Section 5.11. Amendments.......................................................................16
Section 5.12. Extension; Waiver................................................................16
Section 5.13. Enforcement......................................................................16
Section 5.14. Technology Transfer Option.......................................................17
Section 5.15. Legal Fees.......................................................................17
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LIST OF EXHIBITS
EXHIBIT A Form of the Employment Agreement
LIST OF SCHEDULES
Schedule 1.2(a) Existing Holder Securities
Schedule 2.3 Existing Holder Warrant Exchange
Schedule 5.1 CRM Related Persons
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STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated July 10, 2000 (this "Agreement"), among
LogiMetrics, Inc., a Delaware corporation (the "Company"), L-3 Communications
Corporation, a Delaware corporation (the "Purchaser"), and the other signatories
hereto (the "Existing Holders"). Capitalized and other defined terms used herein
and not otherwise defined herein shall have the respective meanings specified
the Purchase Agreement (defined below).
W I T N E S S E T H:
WHEREAS, the Purchaser has agreed to purchase shares of Common Stock of
the Company, par value $.01 per share (the "Common Stock"), pursuant to the
terms and conditions of the Purchase Agreement, dated as of even date herewith,
between the Company and the Purchaser (the "Purchase Agreement");
WHEREAS, in connection with the Closing, and as a condition required by
the Purchaser, the Existing Holders have or will have, immediately prior to the
Closing, converted all of the their convertible debt into Common Stock and taken
certain other actions as set forth herein which are required by the Purchase
Agreement;
WHEREAS, this Agreement is a condition (i) to the willingness of the
Purchaser to effect the Closing under the Purchase Agreement and to consummate
the transactions contemplated thereby, and (ii) to the willingness of the
Existing Holders to give their consents to the Purchase Agreement and to the
transactions contemplated thereby;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
Section 1.1. Representations and Warranties of the Company. Each
representation and warranty made by the Company in the Purchase Agreement and
the other Transaction Documents, including, in any certificates delivered
pursuant thereto, in each case, to the extent limited as therein set forth and
by any schedules attached thereto, is herein incorporated by reference and made
a part hereof, and hereby reaffirmed and restated to and for the benefit of each
the other parties hereto, with the understanding that this Agreement is and
shall be deemed a Transaction Document.
Section 1.2. Representations and Warranties of Existing Holders. Each
of the Existing Holders represents and warrants to each of the other parties
hereto, as follows:
(a) Such Existing Holder owns and, subject to this Agreement, has the
complete and unrestricted power and the unqualified right to vote the Common
Stock and/or Convertible Securities, listed by class and number of shares of
Common Stock and/or Convertible Securities,
set forth in Schedule 1.2(a) opposite such Existing Holder's name (the "Existing
Holder Securities").
(b) Such Existing Holder has all requisite right, power and authority
and full legal capacity to enter into this Agreement, to carry out such Existing
Holder's respective obligations hereunder and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement by such
Existing Holder and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of such Existing
Holder, and no other actions (corporate or otherwise) on the part of such
Existing Holder or any other Person are necessary for such Existing Holder to
enter into this Agreement or to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by such Existing Holder and
constitutes a legal, valid and binding obligation of such Existing Holder
enforceable against such Existing Holder in accordance with its terms.
(c) The execution, delivery and performance of this Agreement by such
Existing Holder, and the consummation of the transactions contemplated hereby,
do not and will not (i) conflict with, or result in a breach of or default
under, any terms or conditions of the organizational documents of any such
Existing Holder that is an entity, (ii) violate any Applicable Law, (iii) result
in any breach of, or constitute a default (or event which with the giving of
notice or lapse of time, or both, would become a breach or a default) under, or
give to any other Person any right of termination, amendment, acceleration or
cancellation pursuant to, any material note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument to
which such Existing Holder is a party or by which any of such Existing Holder's
Common Stock or Convertible Securities or any of such Existing Holder's other
assets may be bound, or (iv) result in the creation of any Encumbrance on such
Existing Holder's Common Stock or Convertible Securities (other than the
Encumbrances created by this Agreement).
ARTICLE II
ACTIONS BY EXISTING HOLDERS
Section 2.1. Amendment of Class A Debentures and Class B Debentures.
(a) The Company represents and warrants to each of the other parties
hereto that the Existing Holders collectively constitute the "Majority Holders"
as defined in each of the Class A 13% Senior Subordinated Convertible
Pay-in-Kind Debentures due July 29, 1999 and the Amended and Restated Class B
13% Convertible Senior Subordinated Pay-in-Kind Debentures due July 29, 1999
(respectively, the "Class A Debentures" and the "Class B Debentures" and,
collectively, the "Debentures"). Each Existing Holder has the power and
authority to vote and give its consent (as herein voted and given) to amend the
Debentures pursuant to Section 9 of the Debentures.
(b) Pursuant to Section 9 of the Class A Debentures, the Existing
Holders and the Company hereby irrevocably and forever amend (and hereby vote
and give their consent to such amendment) each of the Class A Debentures to
delete and terminate in their entirety (i) Section 6(c)(xviii) of each of the
Class A Debentures, and (ii) any other provisions in respect of the Class
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A Debentures or any of the registration rights of each holder of the Class A
Debentures and the registration obligations of the Company relating to the
Common Stock issuable upon the conversion of any of the Class A Debentures.
(c) Pursuant to Section 9 of the Class B Debentures, the Existing
Holders and the Company hereby irrevocably and forever amend (and hereby vote
and give their consent to such amendment) each of the Class B Debentures to
delete and terminate in their entirety (i) Section 6(c)(xviii) of each of the
Class B Debentures, and (ii) any other provisions in respect of the Class B
Debentures or any of the registration rights of each holder of the Class B
Debentures and the registration obligations of the Company relating to the
Common Stock issuable upon the conversion of any of the Class B Debentures.
(d) The Existing Holders and the Company hereby irrevocably and forever
amend the Acknowledgment, Consent and Waiver, dated as of March 7, 2000, among
the Company and the other parties thereto (the "Acknowledgement, Consent and
Waiver") to delete and terminate in their entirety (i) Section 3 of the
Acknowledgment, Consent and Waiver and (ii) any other provision in respect of
the registration obligations of the Company and the registration rights of the
other parties thereunder.
(e) The amendments pursuant to Section 2.1(b), 2.1(c) and 2.1(d) shall
be effective immediately prior to the conversion of the Debentures held by the
Existing Holders pursuant to Section 2.2.
Section 2.2. Consent, Conversion of Securities and Waivers by Existing
Holders. In order to induce the Purchaser to execute and deliver the Purchase
Agreement and to consummate the transactions contemplated thereby, effective
immediately prior to the Closing, each Existing Holder hereby irrevocably and
forever:
(a) consents to the execution and delivery by the Company of the
Purchase Agreement and the other Transaction Documents, and to the consummation
of the transactions contemplated thereunder solely upon the terms and conditions
therein set forth;
(b) except as provided in Section 2.3, converts all Existing Holder
Securities consisting of Convertible Securities held by such holder into Common
Stock upon the terms of such securities, except that the Class A Debentures
shall be converted at the modified conversion price of $0.3451 per share
(instead of the existing conversion price of approximately $0.4167); e.g., the
holder of a Class A Debenture in the principal amount of $42,586 will receive
123,402 shares of Common Stock upon conversion (instead of 102,207 shares of
Common Stock);
(c) extends the maturity date of the outstanding principal amount of
the Legacy Group I Loans (as defined in the Acknowledgement, Consent and Waiver)
made by such holder, if any, to the earlier of (i) the fifth day following the
consummation of a Public Offering and (ii) June 30, 2001, provided that (A) all
accrued and unpaid interest and fees under and expenses related to the Legacy
Group I Loans (as defined in the Acknowledgement, Consent and Waiver) shall have
been paid in full at Closing with the Proceeds (it being understood and agreed
by the parties hereto that execution and delivery of this Agreement by each
Existing Holder constitutes acknowledgment by such Existing Holder that payment
of the amounts set forth in the
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Disbursement Letter in accordance with the instructions set forth therein
constitutes full payment of such accrued and unpaid interest, fees and expenses
owing to such Existing Holder), and (B) all of the Legacy Group II Loans (as
defined in the Acknowledgement, Consent and Waiver) shall have been paid in
full, together with all accrued and unpaid interest and fees thereon and
expenses related thereto, at Closing with the Proceeds (it being understood
and agreed by the parties hereto that execution and delivery of this Agreement
by each Existing Holder constitutes acknowledgment by such Existing Holder that
payment of the amounts set forth in the Disbursement Letter in accordance with
the instructions set forth therein constitutes full payment of such Legacy Group
II Loans and full payment of such accrued and unpaid interest, fees and expenses
owing to such Existing Holder);
(d) waives any anti-dilution or similar rights to which such Existing
Holder may be entitled in respect of any Existing Holder Securities owned by
such Existing Holder, whether beneficially or of record, as a result of the
Purchase Agreement or any Transaction Documents or any transaction contemplated
by the Purchase Agreement or any of the Transaction Documents, including,
without limitation, the purchase of Common Stock by the Purchaser pursuant to
the Purchase Agreement or by an investment bank or banks as contemplated by
Section 5.1 of the Purchase Agreement;
(e) waives the right to exercise any anti-dilution or other similar
right to which the Existing Holder may be entitled in respect of any securities
owned by such holder, whether beneficially or of record, as a result of any
previous transactions in which such a right may have arisen;
(f) agrees that each of the Stockholder Agreement, dated as of July 29,
1997, by and among the Company and the other parties thereto and Section 5.1 of
the Unit Purchase Agreement, dated as of March 7, 1996, by and between the
Company and Cerberus Partners L.P. is terminated upon the execution and delivery
of the Purchase Agreement by the respective parties thereto and shall be of no
further force and effect thereafter (it being understood and agreed that the
Company also hereby irrevocably and forever agrees that such Stockholder
Agreement, dated as of July 29, 1997, is so terminated and shall be of no
further force and effect thereafter);
(g) waives application of any provision of any agreement or instrument
to which the Company or any of its Subsidiaries (as defined in the Purchase
Agreement) is a party or by which any of their respective assets is bound, that
conflicts with any provision of any Transaction Document;
(h) consents to the execution, delivery and performance of the
Transaction Documents and the consummation of the transactions contemplated
thereby; and
(i) waives any default, event of default or "Event of Default" of or
under any agreement or instrument to which such Existing Holder and the Company
or any of the Company's Subsidiaries is a party or by which any of their
respective properties are bound.
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Section 2.3. Warrants Held by Existing Holders.
(a) Effective immediately prior to the Closing, the Existing Holders
have irrevocably and forever exchanged any and all Existing Holder Securities
consisting of warrants for Common Stock held by such Existing Holder, if any
("Existing Holder Warrants") for shares of Common Stock of the Company on the
terms set forth on Schedule 2.3 (the "Existing Holder Warrant Exchange").
(b) The Company represents and warrants to the other parties hereto
that (i) the Existing Holder Warrant Exchange has been approved by all requisite
corporate action on the part of the Company and hereby confirms, ratifies and
agrees with the Existing Holder Warrant Exchange, and (ii) neither the Existing
Holder Warrant Exchange nor any of the transactions contemplated thereby
requires registration under the provisions of the Securities Act or any
applicable state securities or "blue sky" laws.
(c) Each Existing Holder that has participated in the Existing Holder
Warrant Exchange hereby represents and warrants to the other parties hereto as
follows:
(i) Such Existing Holder hereby confirms, ratifies and agrees with the
Existing Holder Warrant Exchange with respect to itself or himself.
(ii) Such Existing Holder has received copies of the SEC Documents and
has reviewed therein the discussion of risk factors relating to the Company. In
addition, such Existing Holder has had an opportunity to ask questions of and
receive answers from representatives of the Company concerning the business of
the Company, its condition and prospects (financial and other) and the terms and
conditions of the Existing Holder Warrant Exchange.
(iii) Such Existing Holder is an "Accredited Investor" as such term is
defined in Rule 501 of the rules and regulations of the Commission promulgated
under the Securities Act.
(iv) Such Existing Holder has acquired the Common Stock issued to it or
him in connection with the Existing Holder Warrant Exchange (the "Exchange
Shares") for its own account for investment only and not for or with a present
view to resale or distribution other than in transactions that are in compliance
with the Securities Act and applicable state securities laws. Such Existing
Holder has not entered into any contract, undertaking, agreement or arrangement
with any Person to sell, transfer or pledge to such Person or anyone else any of
the Exchange Shares, and such Existing Holder has no present plans or intentions
to enter into any such contract, undertaking, agreement or arrangement.
(v) Such Existing Holder has the financial ability to bear the economic
risk of losing its entire investment in the Exchange Shares, is prepared to bear
the economic risk of its investment therein for an indefinite time and can
afford to sustain a complete loss of its investment therein.
(vi) Such Existing Holder understands that the Exchange Shares
constitute restricted securities within the meaning of Rule 144 promulgated
under the Securities Act, and that none of the Exchange Shares or any interest
therein may be sold or otherwise transferred except pursuant to an effective
registration statement under the Securities Act or in a transaction exempt from
registration under the Securities Act, and understands the meaning and effect of
such restriction.
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(vii) Such Existing Holder acknowledges that the Exchange Shares may
not be transferred, and the Company shall not be required to register any
transfer thereof on the books of the Company, unless such transfer is made
pursuant to an effective registration statement, in compliance with Rule 144, or
pursuant to another exemption under the Securities Act; provided, however, that
the Company shall not be required to register any transfer if any securities are
offered or sold otherwise than pursuant to an effective registration statement
or pursuant to Rule 144 unless the Company shall have received an opinion of
counsel to such Existing Holder, reasonably satisfactory to the Company, that
such transfer does not require registration under the Securities Act or
applicable state securities laws.
(viii) No Person is or will be entitled to a broker's, finder's,
investment banker's, financial adviser's or similar fee from such Existing
Holder in connection with the Existing Holder Warrant Exchange or any of the
transactions contemplated hereby.
ARTICLE III
MANAGEMENT COVENANTS
Section 3.1. Nomination and Election of Directors.
(a) The Board has set the number of directors at three (to be increased
to seven immediately after SEA Section 14(f) and Rule 14f-1 are complied with)
and, the parties hereto agree to exercise their best efforts to ensure that the
composition of the Board shall be determined as follows:
(i) the Purchaser shall have the right to select and nominate,
from time to time, a number of individuals equal to the excess of
seven over the number of Non-Purchaser Directors that the Existing
Holders are entitled to select and nominate pursuant to clause (ii)
below (the "Purchaser Directors"), among whom shall include the
Chairman of the Board, so long as the Purchaser continues to be the
owner of at least 25% of the outstanding Common Stock on a Fully
Diluted Basis; provided, however, that, until such time as Section
14(f) of the Securities Exchange Act of 1934, as amended ("SEA Section
14(f)") and Rule 14f-1 promulgated thereunder ("Rule 14f-1") are
complied with by the Company, none of the Purchaser Directors shall
take office;
(ii) the Existing Holders shall have the right to select and
nominate by a Majority Vote of the Existing Holders, from time to
time, (A) three individuals, so long as the Existing Holders continue
to be the beneficial owners of at least 15% of the outstanding Common
Stock on a Fully Diluted Basis, or (B) two individuals, so long as the
Existing Holders continue to be the owners of at least 10% of the
outstanding Common Stock on a Fully Diluted Basis;
(iii) upon selection and nomination of any Purchaser Directors
pursuant to clause (i) above, the Purchaser shall provide each of the
Company and the Existing Holders with a notice signed by the Purchaser
indicating such selected and nominated Purchaser Directors;
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(iv) upon selection and nomination of the directors pursuant to
clause (ii) above (the "Non-Purchaser Directors"), the designated
representative of the Existing Holders shall provide each of the
Company and the Purchaser with a notice signed by those Existing
Holders who have provided the Majority Vote of the Existing Holders
indicating such selected and nominated Non-Purchaser Directors; the
initial designated representative of the Existing Holders shall be
Xxxxxx X. Xxxxxxx, III; the designated representative of the Existing
Holders may be changed from time to time upon notice to the Company
and the Purchaser signed by those Existing Holders who have provided
the Majority Vote of the Existing Holders;
(v) so long as the Purchaser is entitled to select and nominate
Purchaser Directors pursuant to clause (i) above, the Purchaser shall
at all times have the right, exercisable by the Purchaser in its sole
discretion, to remove, with or without cause, one or more of the
Purchaser Directors, and to replace such removed directors. If
necessary to effect such removal, each of the Existing Holders shall
vote for such removal at a meeting of the stockholders or shall
execute a written consent to such effect without a meeting and
consents to the prompt holding of a special meeting for that purpose;
and
(vi) so long as the Existing Holders are entitled to select and
nominate the Non-Purchaser Directors pursuant to clause (ii) above,
the Existing Holders shall at all times have the right, exercisable by
a Majority Vote of the Existing Holders in their sole discretion, to
remove, with or without cause, one or more of the Non-Purchaser
Directors. If necessary to effect such removal, the Purchaser shall
vote for such removal at a meeting of the stockholders or shall
execute a written consent to such effect without a meeting and
consents to the prompt holding of a special meeting for that purpose.
(b) The Board has elected, effective upon the Closing having occurred,
as the members of the Board the following three individuals as the initial
Non-Purchaser Directors: Xxxx-Xxxxxxxx Xxxxxxxx, Xxxx Xxxxxxx and Xxxxxx Xxxxxx.
(c) Immediately after SEA Section 14(f) and Rule 14f-1 are complied
with, the parties hereto will cause the following four individuals to be elected
to the Board as the initial Purchaser Directors: Xxxxx Xxxxx, Xxxxxx XxXxxxx,
Xxxxxxxxxxx X. Xxxxxxx and Xxxx Mega.
(d) The execution and delivery of this Agreement by the parties hereto
shall be deemed to satisfy the notice requirements under Section 3.1(a)(iii) and
Section 3.1(a)(iv).
(e) As used herein, the "Majority Vote of Existing Holders", at any
time, means the written action or approval of the Existing Holders that hold a
majority of the Common Stock Equivalents then held by all Existing Holders.
(f) As used herein, "Common Stock Equivalents" means, with respect to
any holder of the Company's securities, the number of shares of Common Stock
owned by such holder and the number of shares of Common Stock into or for which
any Convertible Securities owned by such holder shall be convertible,
exchangeable or exercisable as of the date of determination thereof.
Section 3.2. Replacement of Directors. In the event of the death,
resignation or removal of a Purchaser Director, the Company shall use its best
efforts to, and the Existing
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Holders shall cause the Non-Purchaser Directors to, elect a person designated by
the remaining Purchaser Directors as the successor to such Purchaser Director.
In the event of the death, resignation or removal of a Non-Purchaser Director,
the Company shall use its best efforts to, and the Purchaser shall cause the
Purchaser Directors to, elect a person designated by the remaining Non-Purchaser
Directors as the successor to such Non-Purchaser Director.
Section 3.3. Certain Covenants. Each of the Purchaser and the Existing
Holders shall vote, in person or by proxy, all shares of Common Stock over which
such party may have or share voting power, at any annual or special meeting of
stockholders of the Company called for the purpose of voting on the election of
directors, or to execute written consents of stockholders without a meeting with
respect to the election of directors, to vote in favor of the election of each
director selected and nominated in accordance with Section 3.1 and against any
other nominees and to take all other necessary and appropriate actions within
such party's control to cause such events to occur. The Company shall use its
best efforts to cause persons to be so nominated, elected or removed, as the
case may be, in accordance with the applicable provisions of this Agreement.
Each of the Purchaser and the Existing Holders shall vote all shares of Common
Stock over which such party may have or share voting power and shall take all
other actions within such party's control necessary and appropriate (including
removing any director) to ensure that the Company's certificate of incorporation
and by-laws do not at any time conflict with the provisions of this Agreement
and shall not vote to approve (or consent to the approval of) any amendment to
the Company's certificate of incorporation or by-laws which would be
inconsistent with this Agreement.
Section 3.4. Committees of the Board. If one or more committees of the
Board are in existence, such committees shall be constituted to include at least
one Non-Purchaser Director.
Section 3.5. Proxies. Neither the Purchaser nor any Existing Holder
shall give any proxy or power of attorney to any Person in respect of Common
Stock Equivalents owned by the Purchaser or any Existing Holder that permits the
holder thereof to vote in his discretion on any matter that may be submitted to
the Company's stockholders for their consideration and approval, unless such
proxy or power of attorney is made subject to and is exercised in conformity
with the provisions of this Agreement.
Section 3.6. Executive Officers. The Company shall have entered into an
employment agreement in substantially the form of Exhibit A attached hereto with
each of Xxxxxx Xxxxxx and Xxxxxxx Brand (collectively, the "Employment
Agreements"). Subject to the terms and conditions of the Employment Agreements,
each of Xxxxxx Xxxxxx and Xxxxxxx Brand shall serve at the pleasure of the
Board, and the Board shall have the absolute right, in its sole discretion, to
remove and appoint officers, with or without cause, subject to all Applicable
Laws.
Section 3.7. SEA Section 14(f) and Rule 14f-1.
(a) The Company shall promptly comply with SEA Section 14(f) and Rule
14f-1 in connection with the Transaction Documents.
(b) From and after the Closing, until such time as SEA Section 14(f)
and Rule 14f-1 are complied with in connection with the Transaction Documents,
the Company will operate (and
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will cause its Subsidiaries to operate) the business of the Company and its
Subsidiaries in the ordinary course consistent with past practice. Without
limiting the generality of the foregoing, except to the extent expressly
permitted or contemplated by the Transaction Documents, the Company will not
take (and will cause its Subsidiaries not to take) any of the following actions
without the prior written consent of the Purchaser:
(i) grant (or commit to grant) any increase in the compensation
(including incentive or bonus compensation) of any employee of the
Company or institute, adopt or amend (or commit to institute, adopt or
amend) any compensation or benefit plan, policy, program or
arrangement or collective bargaining agreement applicable to any
employee of the Company;
(ii) enter into any new employment agreement or collective
bargaining agreement or commitment (including any commitment to pay
retirement or other benefits) to or with any of the employees of the
Company;
(iii) except as contemplated by the Letter of Intent, dated
February 17, 2000, between the Company and Signal Technology
Corporation and the other agreements previously entered into in
connection therewith, sell, assign, license, dispose of, or transfer
any of the assets of the Company having a fair market value of at
least $10,000 individually or $50,000 in the aggregate other than
sales of Inventories in the ordinary course of business consistent (in
kind and amount) with past practice, or incur any liabilities or
obligations (including liabilities with respect to indebtedness,
capital leases or guarantees thereof) in excess of $50,000
individually or in the aggregate;
(iv) (A) enter into or terminate any lease of real estate, (B)
create any Encumbrances on any of the assets of the Company except for
Permitted Encumbrances, or (C) make any modifications of or changes in
or terminate any existing Contract other than as may be required to
consummate the transactions contemplated by the Transaction Documents;
(v) make any capital expenditure or capital expenditure
commitment (other than in an emergency) in excess of $50,000 in the
aggregate;
(vi) repay or prepay any liability or obligation prior to its
stated maturity;
(vii) make, give or grant any bid or proposal, or any customer
option relating to any Contract (A) involving an amount in excess of
$50,000 (or amend, supplement or terminate any existing bid or
proposal, or any existing customer option relating to any Contract,
involving an amount in excess of $50,000), (B) involving a loss to the
Company, or (C) not in the ordinary course of business, consistent
with past practice;
(viii) declare, authorize, make or pay any dividend or
distribution on any securities of the Company or any of its
Subsidiaries;
(ix) issue (or commit to issue) any capital stock or Convertible
Securities of the Company or any of its Subsidiaries except for shares
of Common Stock issuable upon (A) upon the conversion of Convertible
Securities outstanding prior to the date hereof,
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(B) upon the exercise of unissued stock options under the Plan, or (C)
as contemplated by Sections 4.2 and 4.3 of the Purchase Agreement;
(x) amend the certificate of incorporation or by-laws of the
Company or any of its Subsidiaries;
(xi) take any action or omit to take any action that would cause
any of the representations or warranties of the Company contained in
any of the Transaction Documents not to be true and correct at any
time between the date hereof and such time as SEA Section 14(f) and
Rule 14f-1 are complied with in connection with the Transaction
Documents; and
(xii) agree to take any of the actions referred to in clauses (i)
through (xi) above.
(c) Notwithstanding any provisions in this Agreement or any other
Transaction Document, until such time as SEA Section 14(f) and Rule 14f-1 are
complied with in connection with the Transaction Documents and the Purchaser
Directors have taken office as directors, none of the Proceeds in excess of
$5,000 may be transferred from the Company to a third party without the prior
written consent of the Purchaser.
(d) Each of the Existing Holders will use such Existing Holder's
reasonable best efforts to take all actions within such Existing Holder's
control to cause the Company and its Subsidiaries to comply with Section 3.7(b).
ARTICLE IV
TRANSFERS
Section 4.1. Right of First Offer.
(a) At such time as the Purchaser ceases to be the owner of at least
25% of the Common Stock on a Fully Diluted Basis, then the provisions of this
Section 4.1 shall cease to have any further force and effect.
(b) If at any time and from time to time after the Closing one or more
of the Existing Holders holding or having the power to Transfer 10% or more of
the Common Stock Equivalents (collectively, the "Major Selling Stockholder")
wishes to Transfer in a single transaction or a series of related transactions
all or any part of such Major Selling Stockholder's Convertible Securities or
Common Stock (or any interest therein) (i) representing 10% or more of the
Common Stock Equivalents to any Person (excluding normal market transactions
where the Major Selling Stockholder does not know the identity of the purchaser
in any such normal market transaction), or (ii) representing a percentage of the
Common Stock Equivalents which (to the actual knowledge of Major Selling
Stockholder), together with the holdings of Common Stock Equivalents by a Person
to which the Transfer is proposed to be made, would result in such Person owning
10% or more of the Common Stock Equivalents after giving effect to the Transfer
(in either case, the "Offered Stock"), then such Major Selling Stockholder
shall, prior to consummating any such desired Transfer, give a written notice to
the Purchaser (at the addresses for Offer Notices set forth in Section 5.1),
which notice shall include the proposed offer price per
10
Common Stock Equivalent being offered (the "Offer Price"), the payment terms and
the telecopy number to which any Reply Notice is to be sent (an "Offer Notice").
(c) The Purchaser shall have the right to purchase, at the Offer Price
and on all the other terms and conditions set forth in the Offer Notice, all
(but not less than all) the Offered Stock pursuant to this Section 4.1.
(d) The Purchaser shall be irrevocably deemed to have rejected the
offer contained in the Offer Notice unless the Purchaser provides the Major
Selling Stockholder with written notice of acceptance of such offer by telecopy
to the person that sent the Offer Notice at the telecopy number specified in the
Offer Notice to which any Reply Notice is to be sent (a "Reply Notice") within
one business day after the Offer Notice is deemed to be given by the Major
Selling Stockholder pursuant to the provisions hereof. A Reply Notice shall
constitute an irrevocable agreement by the Purchaser to purchase all, but not
less than all, of the Offered Stock on the terms specified in the Offer Notice.
No later than one business day after the Reply Notice is given, the Purchaser
shall deliver a certified check or checks in the amount of the aggregate Offer
Price to the Major Selling Stockholder against delivery of duly endorsed
certificates representing the Offered Stock to be purchased. Such Offered Stock
shall be delivered free and clear of all Encumbrances other than those imposed
by this Agreement and excluding any registration requirements imposed by the
Securities Act and applicable state securities or blue sky laws.
(e) If the Purchaser does not elect to purchase all the Offered Stock,
the Major Selling Stockholder shall have the right to Transfer all or a portion
of the Offered Stock within 90 days after the Offer Notice is received by the
Major Selling Stockholder at a price not lower than 90% of the Offer Price, and
on terms and conditions (with the exception of price) no more favorable to the
transferee(s) than those contained in the Offer Notice; provided, however, if
the Major Selling Stockholder does not Transfer all the Offered Stock within
such 90-day period, the Purchaser's rights with respect to any of the remaining
Offered Stock and the procedures under this Section 4.1 shall recommence in
their entirety; provided further, however, nothing stated in this Section 4.1 or
elsewhere in this Agreement shall limit in any way the right of such Major
Selling Stockholder or any other Existing Holder to Transfer at any time any of
such party's Common Stock or Common Stock Equivalents, including any Offered
Stock to which this Section 4.1(e) applies in a transaction not subject to
Section 4.1(b).
Section 4.2. Legend. Each of the Purchaser and the Existing Holders
acknowledges that all the certificates now or hereafter representing any Common
Stock or Common Stock Equivalents held by such Person shall, to the extent
required by applicable law or regulation, be stamped or otherwise imprinted with
the following (or a substantially similar) legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR TRANSFERRED
WITHOUT SUCH REGISTRATION UNLESS AN EXEMPTION UNDER SUCH ACT OR LAWS
IS AVAILABLE.
11
Any such legend shall be removed upon either (a) registration under the
Securities Act of the securities represented by the certificate(s) in question,
or (b) receipt of a legal opinion reasonably satisfactory to the Company to the
effect that such legend is not required by the Securities Act to be placed on
the certificate(s) in question.
ARTICLE V
MISCELLANEOUS
Section 5.1. Notices. (a) Subject to the provisions of Section 4.1
applicable to an Offer Notice and a Reply Notice, which provisions shall
supersede any conflicting provision of this Article V, all notices, requests,
claims, demands, approvals, consents, waivers and other communications hereunder
(each a "Notice") shall be in writing and shall be delivered by hand, delivered
by courier, deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested), or sent by facsimile transmission upon
receipt of a confirmed transmission report, as follows:
If to the Company: LogiMetrics, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: President
with copies to:
Xxxxxxxxxx Xxxxxxx PC
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.;
L-3 Communications Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.; and
Xxxxxxx Breed Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Gerkis, Esq.
12
If to the Purchaser (except, in the case of L-3 Communications Corporation
any Offer Notice) Xxxxx Microwave
000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Mega
with copies to:
L-3 Communications Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.; and
Xxxxxxx Breed Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Gerkis, Esq.
If to the Purchaser (in the case of any Offer L-3 Communications Corporation
Notice) 000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. XxXxxxx
with copies to:
L-3 Communications Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
If to Xxxxxx Xxxxxxxxx XxXxxxx, Inc., or any of the Existing Holders listed on
Schedule 5.1 (the "CRM Related Persons"):
To such Person
c/o Cramer Xxxxxxxxx XxXxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, III,
Executive Vice President
With copies to:
13
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxx Xxxxxx, Esq.
If to any other Existing Holder: at the address set forth on the signature pages
of this Agreement.
Any party hereto, by Notice given to the other party hereto in accordance with
this Section 5.1, may change the address or facsimile transmission number to
which such Notices are to be sent to such party. All Notices shall be deemed
effective and given upon confirmed receipt or refusal of receipt.
Section 5.2. Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the
State of New York, without reference to the choice of law principles thereof.
Each of the parties hereto irrevocably submits to the exclusive jurisdiction of
the courts of the State of New York and the United States District Court for the
Southern District of New York for the purpose of any suit, action, proceeding or
judgment relating to or arising out of this Agreement and the transactions
contemplated hereby. Service of process in connection with any such suit, action
or proceeding may be served on each party hereto anywhere in the world by the
same methods as are specified for the giving of notices under this Agreement.
Each of the parties hereto irrevocably consents to the jurisdiction of any such
court in any such suit, action or proceeding and to the laying of venue in such
court. Each party hereto irrevocably waives any objection to the laying of venue
of any such suit, action or proceeding brought in such court and irrevocably
waives any claim that any such suit, and action or proceeding brought in any
such court has been brought in an inconvenient forum.
Section 5.3. Assignment; Successors and Assigns; No Third Party Rights.
This Agreement may not be assigned by the Company, the Purchaser or any Existing
Holder, except to any of its controlled Affiliates (provided that such
controlled Affiliate continues to remain at all times thereafter a controlled
Affiliate of the assigning party) or to any successor-in-interest to
substantially all of its business. In the event of any permitted assignment of
this Agreement, the assigning party shall not be released from such party's
obligations hereunder. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, permitted assigns
and legal representatives. This Agreement shall be for the sole benefit of the
parties to this Agreement and their respective successors, permitted assigns and
legal representatives and is not intended, nor shall be construed, to give any
Person, other than the parties hereto and their respective successors, permitted
assigns and legal representatives, any legal or equitable right, remedy or claim
hereunder.
Section 5.4. Counterparts. This Agreement may be executed (including by
facsimile transmission) with counterpart signature pages or in multiple
counterparts, each of which shall be deemed an original agreement, but all of
which together shall constitute one and the same instrument.
14
Section 5.5. Titles and Headings. The titles and headings in this
Agreement are for reference purposes only, and shall not in any way affect the
meaning or interpretation of this Agreement.
Section 5.6. Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties with respect to the matters
covered hereby and supersedes all previous written, oral or implied agreements
or understandings between them with respect to such matters.
Section 5.7. Severability. The invalidity of any portion hereof shall
not affect the validity, force or effect of the remaining portions hereof. If it
is ever held that any restriction hereunder is too broad to permit enforcement
of such restriction to its fullest extent, such restriction shall be enforced to
the maximum extent permitted by law.
Section 5.8. No Strict Construction. Each of the parties hereto
acknowledges that this Agreement has been prepared jointly by the parties
hereto, and shall not be strictly construed against either party.
Section 5.9. Acknowledgement. Each of the parties hereto acknowledges
that the representations and warranties contained in this Agreement and in any
document or instrument delivered to such party pursuant hereto or in connection
herewith shall not be deemed waived or otherwise affected by any investigation
by another party hereto, or such party's officers, directors, employees,
counsel, accountants, advisors, representatives and agents.
Section 5.10. Effectiveness; Termination.
(a) This Agreement shall become effective only upon the Closing, and
shall terminate upon the earliest to occur of (i) the consummation of the Public
Offering, (ii) with respect to Purchaser or any Existing Holder, when such party
shall have irrevocably Transferred all of such party's interests in the Common
Stock and Convertible Securities of the Company to one or more Person(s) that
are not Affiliates of the Purchaser or such Existing Holder, as the case may be,
(iii) the consummation of a Company Sale, to the extent approved by a Special
Director Majority or a Special Stockholder Majority in accordance with Section
4.4 of the Purchase Agreement, and (iv) the written mutual consent of the
Purchaser and such of the Existing Holders as would then be collectively
entitled to cast the Majority Vote of Existing Holders.
(b) For purposes of this Section 5.10, the term "Company Sale" shall
mean any of (i) a Transfer of all or substantially all of the assets of the
Company to any Person, or group of related Persons, other than to a wholly owned
Subsidiary of the Company, in one transaction or a series of related
transactions, (ii) a merger, consolidation, recapitalization, share exchange or
reorganization of the Company in which the holders of voting stock of the
Company immediately prior thereto will not own at least 50% of the voting shares
of the continuing or surviving entity (whether or not the Company) immediately
thereafter, (iii) the sale or other disposition of voting stock of the Company
representing 50% or more of the total voting power of the Company's outstanding
capital stock (including Common Stock Equivalents) in one transaction or a
series of related transactions to any Person, or group of related Persons, other
than a Stockholder or any of its Affiliates, (iv) the issuance of additional
shares of voting stock
15
(including, but not limited to, the issuance of rights to purchase shares of
voting stock), if, as a result thereof, any Person, or group of related Persons,
other than the Purchaser and/ or any of its Affiliates, would beneficially own
50% or more of the total voting power of the Company's outstanding capital stock
in one transaction or a series of related transactions, (v) the formation of any
form of partnership, joint venture, association or other business organization
or strategic alliance, in which the Company would participate if, as a result
thereof, all or substantially all of the assets of the Company would be
Transferred to any Person not wholly owned by the Company or one or more wholly
owned Subsidiaries of the Company, and (vi) to the extent not otherwise referred
to in clauses (i) through (v) of this Section 5.10, any event referred to in
clauses (A) or (B) of Section 4.4(a) of the Purchase Agreement.
Section 5.11. Amendments. This Agreement may not be amended or modified
except by an instrument in writing signed on behalf of the Company, the
Purchaser and such of the Existing Holders as would then be collectively
entitled to cast the Majority Vote of Existing Holders.
Section 5.12. Extension; Waiver. Subject to the limitations of Section
4.4 of the Purchase Agreement, any party hereto may (a) extend the time for
performance of any of the obligations or other acts of any of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties of any
of the other parties hereto contained herein or in any document delivered
pursuant hereto, and (c) waive compliance with any of the agreements of any of
the other parties hereto or satisfaction of any of the conditions to such
party's obligations contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The failure of a party
hereto to assert any of such party's rights hereunder shall not constitute a
waiver of such rights.
Section 5.13. Enforcement.
(a) Each party hereto acknowledges that it would be impossible to
determine the amount of damages that would result from any breach of any of the
provisions of this Agreement, that the remedy at law for any breach, or
threatened breach, of any of such provisions would likely be inadequate and,
accordingly, each other party shall, in addition to any other rights or remedies
which such party may have, be entitled to obtain such equitable and injunctive
relief as may be available from any court of competent jurisdiction to compel
specific performance of, or restrain any party from violating, any of such
provisions. In connection with any action or proceeding for injunctive relief,
each party hereto hereby waives the claim or defense that a remedy at law alone
is adequate and, to the maximum extent permitted by law, consents to have each
provision of this Agreement specifically enforced against such party, without
the necessity of posting bond or other security against such party, and consents
to the entry of injunctive relief against such party enjoining or restraining
any breach or threatened breach of such provisions of this Agreement.
(b) If any party hereto initiates any legal action arising out of or in
connection with this Agreement, the prevailing party in such legal action shall
be entitled to recover from the other party all reasonable costs and expenses
(including attorneys' fees and expert witness fees and expenses) incurred by the
prevailing party in connection therewith.
16
(c) The Non-Purchaser Directors shall have the right to enforce the
covenants of the Purchaser contained in this Agreement and the other Transaction
Documents on behalf of the Company.
(d) Notwithstanding anything to the contrary contained in this
Agreement or the Purchase Agreement or as otherwise elsewhere provided, the
Existing Holders shall have the right to enforce Section 4.4 of the Purchase
Agreement on behalf of the Company if the Non-Purchaser Directors fail so to
enforce such Section 4.4; provided, however, this right to enforce such Section
4.4 under this Section 5.13(d) shall exist only so long as the Existing Holders
continue to be the owners of at least 10% of the outstanding Common Stock on a
Fully Diluted Basis.
Section 5.14. Technology Transfer Option. Notwithstanding Section
1.6(a) of the Purchase Agreement, until the exercise of the Technology Option
pursuant to Section 1.6(a) of the Purchase Agreement, the Company and the
Existing Holders acknowledge and agree that the Purchaser may conduct its
business and utilize the Technology in any manner as the Purchaser sees fit and
at any time and from time to time may sell, transfer, license, lease, create
Encumbrances on or otherwise dispose of any (each a "Disposition") of the
Technology as it sees fit in the ordinary course of its business (it being
understood and agreed that upon the occurrence of any Disposition, the
Technology subject to such Disposition thereafter will no longer be subject to
the Technology Option).
Section 5.15. Legal Fees. Each party shall bear their own legal fees
and expenses in connection with the negotiation, execution and delivery of this
Agreement, any other Transaction Document and any ancillary documents thereto.
Notwithstanding the foregoing, the Company agrees to pay the legal fees and
expenses incurred by Xxxxxx Xxxxxxxxx XxXxxxx, LLC ("CRM, LLC") not to exceed
$115,000. Each Existing Holder hereby irrevocably and forever waives any right
under any document that obligates the Company to pay any legal fees or expenses
incurred by such Existing Holder (or to reimburse such Existing Holder for any
such legal fees or expenses), except to the extent set forth in the next
preceding sentence.
[Signature Pages Follow]
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LOGIMETRICS, INC.
By:/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
L-3 COMMUNICATIONS CORPORATION
By:/s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxx
Title: Vice-President
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-1
/s/ Xxxxxxx X. Brand
----------------------------------------
Xxxxxxx X. Brand
00 Xxxxxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
LFH, LLC
By:/s/ Xxxxxxx Brand
-------------------------------------
Name: Xxxxxxx Brand
Title: Director
000 Xxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
XXXXXX XXXXXXXXX XxXXXXX LLC
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
Chief Operating Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-2
L.A.D. EQUITY PARTNERS, L.P.
By: Flint Investments, Inc.
Its General Partner
By:/s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
/s/ Xxxxxx X. Xxxxxxxxx, Xxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx, Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CRM 1998 ENTERPRISE FUND, LLC
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.,
Its Managing Member
By:/s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Operating Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
X-0
XXX 0000 XXXXXXXXXX FUND, LLC
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.
Its Managing Member
By:/s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Operating Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CRM PARTNERS, L.P.
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.
Its General Partner
By:/s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CRM RETIREMENT PARTNERS, L.P.
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.
Its General Partner
By:/s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
S-4
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CRM MADISON PARTNERS, L.P.
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.
Its General Partner
By:/s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CRM U.S. VALUE FUND, LTD.
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.
Its General Partner
By:/s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
EURYCLEIA PARTNERS, L.P.
By: Marchessini & Company,
Its General Partner
By:/s/ Xxxx Xxxxxx
-------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
S-5
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
A.C. ISRAEL ENTERPRISES, INC.
By:/s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
Title:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CRM-EFO PARTNERS, L.P.
By: CRM-EFO Investments, LLC
Its General Partner
By: CRM Management, Inc.,
Its Managing Member
By:/s/ Xxxxxx X. Xxxxxxx, III
-------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-6
/s/ Xxxxxxx Xxxxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxxxx
Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
XXXXXX EQUITIES CORP.
By:/s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: President
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
WHITEHALL PROPERTIES, LLC
By:/s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: President
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-7
KABUKI PARTNERS ADP, GP
By:/s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: General Partner
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
XxXXXXX FAMILY PARTNERSHIP L.P.
By:/s/ Xxxxxx X. XxXxxxx
-------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: General Partner
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
/s/ Xxxxxxx X. Xxxx, Xx.
----------------------------------------
Xxxxxxx X. Xxxx, Xx.
By: Xxxxxx Xxxxxxxxx XxXxxx, Inc.
Attorney-in-Fact
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-8
/s/ Xxxxxx X. Xxxxxxx, III
----------------------------------------
Xxxxxx X. Xxxxxxx, III
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
000 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
MBF CAPITAL CORPORATION
By:/s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
MBF BROADBAND SYSTEMS, L.P.
By: MBF Broadband Systems, Inc.,
Its General Partner
By:/s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-9
PHINEAS BROADBAND SYSTEMS
By: MBF Broadband Systems, Inc.
Its General Partner
By:/s/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: President
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CERBERUS PARTNERS, L.P.
By: Cerberus Associates, LLC,
Its General Partner
By:/s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-10
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
S-11
EXHIBIT A
FORM OF THE EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT
This Employment Agreement dated as of July 10, 2000 (this "Agreement"),
between LOGIMETRICS, INC., a Delaware corporation (the "Company"), and XXXXXX X.
XXXXXX (the "Employee").
RECITALS
WHEREAS, that in connection with the purchase by L-3 Communications
Corporation ("L-3") of an equity interest in the Company, the Company and the
Employee desire to terminate the employment agreement, dated April 25, 1997 (the
"Existing Agreement"), by and between the Company and the Employee, and enter
into a new agreement for the Employee's services providing for all terms and
conditions of the Employee's continued employment;
WHEREAS, the covenant not to compete set forth in Section 6 is necessary
to protect the Company's legitimate business interests; and
WHEREAS, the Company desires to continue the employment of the Employee
with the Company on the terms and conditions hereof, and the obligations of the
Company and L-3 to effect the closing under the Purchase Agreement, dated July
10, 2000 (the "Purchase Agreement"), between the Company and the Employee, were
conditioned upon the Employee's agreement to be employed by the Company pursuant
to the terms and conditions of this Agreement (including Section 6), and the
Employee desires to be so employed by the Company;
NOW THEREFORE, the Company and the Employee, in consideration of the
premises, the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, and
intending to be legally bound, hereby agree as follows:
SECTION 1. EMPLOYMENT GENERALLY
1.1. Employment. The Company hereby offers the Employee employment, and
the Employee hereby accepts such offer of employment and agrees to perform his
duties and responsibilities hereunder, in accordance with the terms and
conditions hereinafter set forth.
1.2. Position and Duties. During the Employment Term (as defined in
Section 2), the Employee shall serve on a full-time basis and devote his entire
working time, attention and
energy exclusively to the Company as Senior Vice President--Administration. The
Employee shall report to the individual acting as or appointed as the President
of the Company. The Employee will perform such executive, managerial and
administrative duties as determined by the President of the Company, will use
his best efforts to promote the interests of the Company, and will comply with
all lawful directives, policies, procedures and directions as may from time to
time be given or determined by the Company.
1.3. Outside Activities. The Employee shall not engage in any activity
or investment if such activity or investment interferes with the performance of
his duties hereunder. Notwithstanding the foregoing, the Employee may engage in
charitable, educational, civic and similar activities and continue to be a
member of boards of directors of other businesses and charitable organizations,
and become a member of boards of directors of other businesses and charitable
organizations, subject to approval by the Board of Directors of the Company, to
the extent that such activities do not adversely affect the performance of his
duties hereunder.
1.4. Other Agreements Superseded. This Employment Agreement supersedes
and replaces all prior agreements and understandings (including the Existing
Agreement), between the Company and the Employee, whether written or oral,
relating to the subject matter hereof, and all such prior agreements and
understandings shall be null and void and without further effect as of the date
hereof.
SECTION 2. EMPLOYMENT TERM. Subject to the provisions of Section 4, the
term of this Agreement shall be for a period commencing on the date hereof and
ending on the earlier of (a) the second anniversary of the date hereof and (b)
termination of the Employee's employment pursuant to this Agreement (the
"Employment Term").
SECTION 3. COMPENSATION.
3.1. Base Salary. The Company agrees to pay, and the Employee agrees to
accept, as base compensation for all services to be rendered by the Employee
hereunder (including any services as an officer, director, employee or member of
any committee of the Company or any of its affiliates), the sum of $210,000 per
year (less appropriate deductions) (the "Base Salary"). The Base Salary shall be
payable in accordance with the ordinary payroll practices of the Company. During
the Employment Term, the Company shall, in good faith,
review the Base Salary in accordance with the Company's customary procedures and
practices regarding the salaries of similarly situated employees and may, if
determined by the Company to be appropriate, increase the Base Salary following
such review (it being understood and agreed by the Employee that the Company
shall not be obligated to increase the Base Salary), and "Base Salary" for all
purposes herein shall be deemed to be a reference to such higher amount.
3.2. Additional Employee Benefits. Initially, the Employee shall receive
such employee benefits that are provided generally to the Company's employees as
of the date of the Purchase Agreement (collectively, the "LogiMetrics
Benefits"). After the date hereof, any of the LogiMetrics Benefits may be
amended, supplemented, terminated or modified from time to time by the Company,
so long as the Company provides the Employee with employee benefits similar to
those provided to other comparably situated Company employees.
3.3. Withholding. All payments due to the Employee hereunder shall be
subject to all applicable taxes required to be withheld by the Company pursuant
to federal, state or local law. The Employee shall be solely responsible for
income and earnings taxes imposed on the Employee by reason of any cash or
non-cash compensation and benefits provided hereunder.
3.4 Option Grants. The Company shall, no later than the date hereof,
grant to the Employee options (the "Employee Options") to purchase 750,000
shares of the Company's common stock, par value $.01 per share (the "Common
Stock") pursuant to Section 4.2 of the Purchase Agreement, including, having an
exercise price of $0.54 per share (it being understood and agreed that such
number of shares of Common Stock and such exercise price are before giving
effect to the Reverse Stock Split (as defined in the Purchase Agreement)). The
Employee shall enter into the non-qualified stock option agreement with the
Company to evidence the grant of the Employee Options in the form attached
hereto as Schedule A.
3.5 Annual Bonus. The Employee shall be entitled to participate in any
cash bonus plan or arrangement in which key employees of the Company are
entitled to participate now or during the Employment Term. Any amount payable to
the Employee pursuant to any such cash bonus plan or arrangement shall be
determined by the Board of Directors of the Company or the Compensation
Committee thereof, in its sole discretion.
3.6 Deferred Payments. Not later than the date hereof, the Company shall
pay to
the Employee the sum of $124,056 in full payment of (a) unpaid salary previously
deferred by the Employee, and (b) certain expense reimbursements previously
deferred by the Employee.
3.7 Term Life Insurance. The Company shall reimburse the Employee up to
$2,000 in any calendar year for premiums paid by the Employee to maintain a term
insurance policy insuring the life of the Employee in the face amount of
$1,000,000.
3.8 Vacation. The Employee shall be entitled to four weeks of vacation
in each calendar year during the Employment Term and shall be entitled to carry
over all, part or none of such vacation in accordance with any vacation policy
maintained by the Company for senior executives.
3.9 Expense Reimbursement. The Company shall pay or reimburse the
Employee for all reasonable travel or other expenses incurred by the Employee in
connection with the performance of his duties and obligations under this
Agreement, subject to the Employee's presentation of appropriate vouchers and/or
receipts in accordance with such procedures as the Company may from time to time
establish for senior officers and to preserve any deductions for Federal income
taxation purposes to which the Company may be entitled.
SECTION 4. TERMINATION.
4.1. Termination Events. The Employee's employment with the Company and
the Employment Term shall terminate upon the earliest occurrence of any of the
following events:
(a) The death or resignation of the Employee.
(b) The termination of the Employee's employment by the Company for
Cause (as defined in Section 4.3(a)).
(c) The termination of the Employee's employment by the Company for
Employee Disability.
(d) The termination of the Employee's employment by the Employee for
Good Reason.
(e) The termination of the Employee's employment other than pursuant
to clauses (a), (b), (c) or (d) above.
4.2. Effect of Termination.
(a) If the Employee's employment with the Company is terminated pursuant
to Section 4.1(a), 4.1(b) or 4.1(c), then the Company shall pay the Employee (or
his estate in the event of his death) any portion of the Base Salary accrued
hereunder on or prior to the date of termination but not paid. The Employee
shall not be entitled to any other payments hereunder.
(b) If the Employee's employment with the Company is terminated pursuant
to Section 4.1(d) or 4.1(e), the Employee shall continue to be paid his Base
Salary in accordance with the Company's usual payroll practices until the later
to occur of (i) the second anniversary of the date hereof and (ii) six months
after the end of the Employment Term (the "Severance Period").
4.3. Definitions.
(a) As used herein, the term "Cause" shall mean: (i) gross neglect of or
willful and continuing refusal by the Employee to substantially perform his
duties hereunder (other than due to death or Disability); (ii) any breach of the
provisions of Section 5 or Section 6 by the Employee; (iii) willfully engaging
in conduct that is demonstrably injurious to the Company or the Company's
subsidiaries or affiliates by the Employee; and/or (iv) conviction of, or plea
of nolo contendere, by Employee to (A) any felony, or (B) a misdemeanor
involving moral turpitude.
Termination of the Employee pursuant to Section 4.1(b) shall be made by
delivery to the Employee of written notice, given at least five days prior to
such termination, from the Board of Directors of the Company (the "Board")
specifying the particulars of the conduct by the Employee 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 the Employee shall have had the opportunity
(along with counsel) to be heard, unless, within five days after receiving such
notice, the Employee 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 clause (ii) or (iv) above. As long as the Employee is
on the Board, he shall reasonably cooperate to cause a valid Board meeting to
occur.
(b) As used herein, the term "Disability" shall mean the Employee's
absence
from the full-time performance of the Employee's duties pursuant to a reasonable
determination made in accordance with the Company's then existing disability
plan that the Employee 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.
(c) As used herein, the term "Good Reason" means (i) any reduction by
the Company in Employee's Base Salary, (ii) any material adverse change in the
reporting lines described in Section 1.2, (iii) any material diminution or
material adverse change in the Employee's titles, duties or responsibilities,
unless due to a promotion or increased responsibility of the Employee, or (iv)
the relocation of the Company's executive offices more than 50 miles outside
Eatontown, New Jersey or Bohemia, New York without the Employee's prior written
consent.
4.4. Other Consequences of Termination.
(a) In the event of the termination of the Employment Term, for whatever
reason, the Employee agrees to cooperate with the Company and to be reasonably
available to the Company with respect to continuing and/or future matters
arising out of the Employee's employment or any other relationship with the
Company or its affiliates, whether such matters are business-related, legal or
otherwise. The Company agrees to reimburse the Employee for the Employee's
reasonable out-of-pocket expenses incurred in complying with the terms of this
Section 4.4(a) upon delivery by the Employee to the Company of valid receipts
for such expenses.
(b) Subject to the other provisions of this Agreement and the terms of
any benefit plan or arrangement in which the Employee participates, the payments
upon termination pursuant to this Section 4 shall constitute the exclusive
payments due the Employee upon termination under this Agreement. The Employee
shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise.
(c) Upon the termination of the Employment Term for any reason, the
Employee 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 the Employee's possession
or under his control, including all copies of any of the foregoing.
(d) The provisions of this Section 4 and of Sections 5 and 6 shall
survive the expiration or earlier termination of the Employment Term and this
Agreement.
SECTION 5. CONFIDENTIALITY; PUBLIC STATEMENTS
5.1. Confidential and Proprietary Information. (a) In addition to the
confidential and proprietary information that the Employee heretofore developed,
conceived, learned or became aware of as an employee, proprietor, owner,
director, officer or stockholder of LogiMetrics (the "Prior Trade Secrets"), the
Company and its affiliates may, pursuant to the Employee's employment hereunder,
provide to him and confide in him additional confidential and proprietary
information (collectively, the "Additional Trade Secrets"), including without
limitation: (i) business methods and systems, techniques and methods of
operation developed by the Company or its affiliates and which the Employee
recognizes to be unique assets of the business of the Company and its
affiliates; (ii) any sales prospects, customer lists, products, research or data
of any kind; (iii) any information relating to strategic plans, sales costs,
profits or the financial condition of the Company, its affiliates or any of
their customers or prospective customers, which is not generally known to the
public; or (iv) computer programs and software, including without limitation
source code, object code and data. All the Prior Trade Secrets and all the
Additional Trade Secrets are herein sometimes referred to collectively as "Trade
Secrets". The Employee shall not, either during or at any time after the
termination of his employment with the Company, directly or indirectly, in any
manner utilize or disclose any Trade Secrets to any individual, firm,
corporation, company, association or other entity without the prior consent of
the Company (unless legally compelled to do so, but subject to the provisions of
Section 5.1(b)). The term "Trade Secrets", however, does not include
information, knowledge or factual data that: (A) becomes part of the public
knowledge or literature other than by reason of any inaction or action of the
Employee; or (B) was disclosed to the Employee without restriction by a third
party having the right to disclose the same. The Employee further covenants and
agrees that he will promptly deliver to the Company all tangible evidence of
Trade Secrets, prior to or at the termination of the Employee's employment.
(b) If the Employee becomes legally compelled (by deposition,
interrogatory,
request for documents, order, subpoena, civil investigative demand or similar
process issued by a court of competent jurisdiction or by a governmental body)
to disclose any Intellectual Property (as defined below) of the Company or any
of its affiliates, then the Employee will give prompt prior written notice of
such requirement to the Company so that the Company or any of its affiliates may
seek a protective order or other appropriate remedy and/or waive compliance with
the terms of this Agreement. If such protective order or other remedy is not
obtained, and irrespective of whether or not compliance with the provisions
hereof is waived, then it is agreed that only that portion of the Intellectual
Property of the Company or any of its affiliates, which the Employee is advised
in writing by the Employee's counsel is legally required to be disclosed, will
be disclosed by the Employee, and reasonable efforts will be made by him to
obtain assurance that confidential treatment will be accorded such portion of
such Intellectual Property.
5.2. Trade Secrets
(a) The Employee agrees that any Trade Secret, invention, improvement,
patent, patent application or writing, and any program, method, process, system
or novel technique (whether or not capable of being trademarked, copyrighted or
patented) (collectively, "Intellectual Property"), conceived, devised,
developed, owned or otherwise obtained by him, whether solely or jointly with
others, either (i) as an employee, proprietor, owner, officer, director or
stockholder of LogiMetrics prior to the date hereof, or (ii) during the
Employment Term relating to the business of the Company or any of its
Subsidiaries, shall in each and every case be and become the property of the
Company. The Employee agrees to give the Company prompt notice of his
conception, invention, authorship, development or acquisition of any
Intellectual Property and, without additional consideration, to execute such
instruments of transfer, assignment, conveyance or confirmation and such other
documents, and to do all appropriate lawful acts, as may be requested by the
Company to transfer, assign, confirm, and perfect in the Company or its
affiliates all legally protectable rights in any Intellectual Property
throughout the world.
(b) The Employee hereby assigns and conveys to and confirms in the
Company the entire right, title and interest in and to the Intellectual
Property, conceived, devised, developed, owned or otherwise obtained by him,
whether solely or jointly with others, as an employee, proprietor, owner,
officer, director or stockholder of LogiMetrics or any of its
subsidiaries (or any predecessor company) prior to the date hereof (the "Prior
Intellectual Property"), or on or after the date hereof and through the end of
the Employment Term relating to the business of the Company or any of its
Subsidiaries (the "Future Intellectual Property") and every priority right that
is or may be predicated upon or arises from any of the Prior Intellectual
Property or any of the Future Intellectual Property.
(c) The Employee, upon the Company's reasonable request and at its
expense, but without additional consideration to the Employee, shall execute
such instruments of transfer, assignment, conveyance or confirmation and such
other documents, and shall do all appropriate lawful acts, as may be requested
by the Company to transfer, assign, confirm and perfect in the Company or its
affiliates all legally protectable rights in any Intellectual Property, whether
Prior Intellectual Property or Future Intellectual Property, throughout the
world.
(d) The Employee represents and warrants that no entity in which the
Employee has an equity interest has any right, title or interest in and to the
Company's Intellectual Property. Without limiting the rights or remedies of the
Company in the event of a breach of the foregoing representation and warranty,
the Employee will cause any such entity in which the Employee has an equity
interest to execute such instruments of transfer, assignment, conveyance or
confirmation and such other documents, and shall do all appropriate lawful acts,
as may be requested by the Company to transfer, assign, confirm and perfect in
the Company or its affiliates all legally protectable rights in any Intellectual
Property, whether Prior Intellectual Property or Future Intellectual Property,
throughout the world.
5.3. Prohibited Public Statements. During the Employment Term, the
Employee shall not make any public statement reflecting adversely on the
Company, its affiliates or their business prospects, except for such statements
which the Employee is required to make by law.
SECTION 6. NON-COMPETE. In further consideration of the Company's
covenants and agreements contained in this Agreement, the Employee agrees to
abide by the terms and conditions contained in this Section 6. The Employee
further acknowledges the sufficiency and receipt of the consideration given in
this Agreement for purposes of enforcing the non-compete provisions contained in
this Section 6.
During the Non-Competition Period (as defined below), Employee will not,
and
will cause his affiliates not to, directly or indirectly, design, manufacture,
market or sell products or provide services which are competitive to those
products manufactured and sold by LogiMetrics during the Employment Term or at
the end of the Employment Term or those services provided by LogiMetrics to its
customers (including improvements or extensions of such products or services)
("Competitive Products and Services").
During the Non-Competition Period, the Employee will not, and will cause
his affiliates not to, directly or indirectly, induce or solicit, or aid or
assist any person or entity to induce or solicit, any employees, salespersons,
agents, consultants, distributors, representatives, advisors, customers or
suppliers of Buyer or the Business to terminate, curtail or otherwise limit
their employment by or business relationship with Buyer or the Business.
As used herein, "Non-Competition Period" shall mean the period beginning
on the date hereof and ending on the 180th day following the last day of the
Employment Term.
The parties hereto agree that the provisions of this Section 6 are
reasonable. If a court determines, however, that any provision of this Section 6
is unreasonable, either in period of time, geographical area or otherwise, then
the parties hereto agree that the provisions of this Section 6 should be
interpreted and enforced to the maximum extent which such court deems
reasonable.
SECTION 7. ENTIRE AGREEMENT. This Agreement constitutes the full and
complete understanding and agreement of the Employee and the Company respecting
the subject matter hereof, and supersedes all prior understandings and
agreements, oral or written, express or implied, respecting the Employee's
employment with the Company.
SECTION 8. HEADINGS. The headings of this Agreement are for convenience
of reference only and are not to be considered in the interpretation of the
terms and conditions of this Agreement.
SECTION 9. NOTICES. Any notice, consent, approval or other communication
required or permitted to be given under this Agreement (each a "Notice") shall
be in writing and shall be given by personal delivery, by nationally recognized
overnight courier or by registered or certified mail, postage prepaid, addressed
as follows:
If to the Company:
LogiMetrics, Inc.
000 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chairman of the Board of Directors
With a copy to:
L-3 Communications Corporation
Xxxxx Microwave East Division
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
If to the Employee, at his personal residence, as reflected in the
personnel records of the Company.
Any party may change the persons and addresses to which notices are to
be sent by giving a Notice of such change to the other party in the manner
provided herein for giving Notices.
A Notice given hereunder shall be deemed given upon actual receipt or
refusal of receipt.
SECTION 10. WAIVER OF BREACH. No waiver by either party of any condition
or of the breach by the other party of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed or construed as a further or continuing waiver of any such condition
or breach or a waiver of any other condition, or of the breach of any other term
or covenant set forth in this Agreement. Moreover, the failure of either party
to exercise any right hereunder shall not bar the later exercise thereof.
SECTION 11. BINDING; NONALIENATION. This Agreement shall inure to the
benefit of and be binding on (a) the Company and its successors and assigns, and
(b) the Employee. The Employee shall not pledge, hypothecate, anticipate or in
any way create a lien upon any amounts provided under this Agreement. This
Agreement and the benefits payable hereunder shall not be assignable by the
Employee; provided, however, that nothing in this
Section shall preclude the Employee from designating a beneficiary to receive
any benefit payable hereunder upon his death, or the executors, administrators
or other legal representatives of the Employee or his estate from assigning any
rights hereunder to which they become entitled, to the person or persons
entitled thereto under applicable law.
SECTION 12. GOVERNING LAW. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect by the internal
laws of the State of New York without giving effect to the conflict of laws
rules thereof.
SECTION 13. CONTINUATION OF COVENANTS. Those covenants and agreements of
the Employee contained in this Agreement that by the terms thereof are intended
to continue to operate after termination of the Employee's employment, including
without limitation the covenants and agreements in Sections 5 and 6, shall
survive termination of the Employee's employment with the Company.
SECTION 14. INVALIDITY OR UNENFORCEABILITY. If any term or provision of
this Agreement is held to be invalid or unenforceable, for any reason, then such
invalidity or unenforceability shall not affect any other term or provision
hereof and this Agreement shall continue in full force and effect as if such
invalid or unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein.
SECTION 15. COUNTERPARTS. This Agreement may be executed (including by
facsimile transmission) with counterpart signature pages or in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
SECTION 16. AMENDMENTS. No provision of this Agreement may be amended,
waived or discharged unless such waiver, amendment or discharge is agreed to in
writing and signed by the parties.
SECTION 17. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any
state having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
LOGIMETRICS, INC.
By:
----------------------------
Name:
Title:
-------------------------------
XXXXXX X. XXXXXX
Schedule A
NON-QUALIFIED STOCK OPTION AGREEMENT
This AGREEMENT made as of the 10th day of July, 2000 (this "Agreement"), by
and between LOGIMETRICS, INC., a Delaware corporation (the "Corporation"), and
XXXXXX X. XXXXXX (the "Optionee").
WITNESSETH THAT:
WHEREAS, the Board of Directors of the Corporation (the "Board") has
decided to grant options to the Optionee to acquire seven hundred fifty thousand
(750,000) shares of the Corporation's common stock (the "Common Stock") upon
consummation of the transactions contemplated by that certain Purchase
Agreement, dated July 10, 2000 (the "Purchase Agreement"), between the
Corporation and L-3 Communications Corporation ("L-3"); and
WHEREAS, the Corporation hereby agrees to grant options to the Optionee to
acquire seven hundred fifty thousand (750,000) shares of the Corporation's
Common Stock pursuant to the Company's Amended and Restated 1997 Stock
Compensation Program and the Optionee hereby accepts such grant, subject to the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Grant of Option; Time of Exercise
(a) The Corporation hereby grants the Optionee a stock option (the
"Option") to purchase from the Corporation an aggregate of 750,000 shares of
Common Stock in the manner and subject to the terms and conditions provided in
this Agreement. It is intended that the Option shall constitute a non-qualified
stock option.
(b) The exercise price shall be $0.54 per share (the "Option Price").
(c) Except as provided in Section 1(d), the Option shall vest and become
exercisable as follows:
Date Percentage Exercisable
---- ----------------------
July 10, 2001 33 1/3%
July 10, 2002 33 1/3%
July 10, 2003 33 1/3%
(d) In the event (i) the Optionee is terminated by the Corporation for
reasons other than Cause (as defined in the Employment Agreement, dated the date
hereof, between the Optionee and the Corporation (the "Employment Agreement"),
(ii) the Optionee terminates his employment with the Corporation for Good Reason
(as defined in the Employment Agreement), or (iii) of a Change of Control (as
defined below) of the Corporation, then, in each case, the Option shall
immediately vest 100% and become exercisable in its entirety. As used herein, a
"Change of Control" shall be deemed to occur at any time after the date hereof
when the number of representatives designated by L-3 to the Board no longer
constitutes a majority of the Board as then constituted.
2. Method of Exercise
The Option may be exercised from time to time by giving written notice
thereof to the Chief Financial Officer of the Corporation, together with payment
in full for the shares of Common Stock to be purchased. The date of such
exercise shall be the date on which the Corporation receives such notice. Such
notice shall state the number of shares of Common Stock for which the Option is
exercised. The purchase price of any shares purchased upon the exercise of the
Option or any portion thereof shall be paid in full at the time of exercise of
the Option by certified or bank cashier's check payable to the order of the
Corporation or, at the option of the Optionee, by (i) shares of Common Stock
which have been held by the Optionee for at least six (6) months, or by a
combination of checks and such shares of Common Stock, or (ii) election of the
Optionee or his Permitted Transferee (as defined in Section 4) to have the
Corporation withhold from the shares of Common Stock that would otherwise be
issued upon exercise of the Option that number of shares having a Fair Market
Value (as defined below) equal to the aggregate Option Price for those shares of
Common Stock to which such election is made. If any portion of the purchase
price is paid in shares of Common Stock, those shares shall be valued at their
then Fair Market Value (as defined below). The Option may not be exercised for a
fraction of a share of Common Stock. For purposes of this Agreement, "Fair
Market Value" shall mean the average per share fair market value of the Common
Stock during the 15-day period prior to the relevant date of exercise by the
Optionee or his Permitted Transferee. If on any date relevant for purpose of
calculating the Fair Market Value the Common Stock is listed on a stock exchange
or is quoted on the automated quotation system of NASDAQ, the fair market value
of the Common Stock for such date shall be the closing sale price (or if such
price is unavailable, the average of the high bid price and the low asked price)
on such date. If no such closing sale price or bid and asked prices are
available, the Fair Market Value shall be determined in good faith by the Board
in accordance with generally accepted valuation principles and such other
factors as the Board reasonably deems relevant.
3. Termination of the Option
(a) The Option, to the extent not previously exercised, shall terminate ten
(10) years from the date of grant of the Option, unless otherwise terminated
earlier pursuant to the provisions of Sections 3(b) through 3(d) hereof.
-2-
(b) If the Optionee ceases to be an employee of the Corporation for any
reason other than for Cause (as defined in the Employment Agreement), death or
disability, then the Option may be exercised by the Optionee, to the extent
exercisable on the date of termination, at any time within three (3) months
after the date of termination. If the Optionee's service as an employee is
terminated for Cause (as defined in the Employment Agreement), the entire Option
(including the vested and unvested portions thereof, to the extent not
previously exercised) immediately shall terminate and shall be forfeited.
(c) If the Optionee becomes disabled within the meaning of Section 22(e)(3)
of the Internal Revenue Code of 1986, as amended, while in the employ of the
Corporation, then the Option may be exercised by the Optionee, to the extent
exercisable on the date of termination due to such disability, at any time
within one (1) year after the date of termination due to such disability.
(d) If the Optionee dies while an employee of the Corporation, then the
Option may be exercised by the person or persons to whom the Optionee's rights
shall pass by will or by the laws of descent and distribution, to the extent
exercisable on the date of death, at any time within one (1) year after the date
of death.
4. Rights Prior to Exercise
The Option is nontransferable and may not be sold, assigned, pledged or
encumbered (by operation of law or otherwise) by the Optionee, except by will or
by the laws of descent and distribution in the event of his death; provided
however that, upon request by the Optionee, the Corporation may permit the
Optionee to transfer the Option to a family member or a trust created for the
benefit of family members of the Optionee (each, a "Permitted Transferee") (such
permission not to be unreasonably withheld). During the Optionee's lifetime, the
Option is only exercisable by the Optionee and any Permitted Transferees.
Neither the Optionee nor any Permitted Transferee shall have any rights as a
holder of shares of Common Stock subject to this Option until exercise of the
Option, payment of the Option Price, and the issuance of a certificate
evidencing shares of Common Stock.
5. Restrictions on Disposition
All shares of Common Stock acquired by the Optionee or any Permitted
Transferee pursuant to this Agreement shall be subject to the restrictions on
sale, encumbrance and other disposition provided by Federal or state law. As a
condition precedent to receiving the shares of Common Stock covered by this
Agreement, the Optionee or any Permitted Transferee may be required by the
Corporation to submit a letter to the Corporation stating that the shares of
Common Stock are being acquired for investment and not with a view to the
distribution thereof. The Corporation shall not be obligated to sell or issue
any shares of Common Stock pursuant to this Agreement unless, on the date of
sale and issuance thereof, the shares of Common Stock are either registered
under the Securities Act and all applicable state securities laws, or are exempt
from registration thereunder. All shares of Common Stock issued to the Optionee
or any Permitted Transferee pursuant to this Agreement may
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bear a restrictive legend summarizing any restrictions on transferability
applicable thereto, including those imposed by Federal and state securities
laws.
6. Reservation of Shares of Common Stock
The Corporation, during the term of the Option, will at all times reserve
and keep available such number of shares of Common Stock as may be exercisable
pursuant to the Option.
7. Tax Withholding
The exercise of any shares of Common Stock pursuant to the Option is
subject to the condition that, if at any time the Corporation shall determine,
in its discretion, that the satisfaction of withholding tax or other withholding
liabilities under any state or Federal law is necessary or desirable as a
condition of, or in connection with, such exercise or the delivery of shares
pursuant thereto, then, in such event, the exercise of the Option or any portion
thereof shall not be effective unless and until such withholding tax or other
withholding liabilities shall have been satisfied in a manner acceptable to the
Corporation.
8. Services as an Employee
Nothing in this Agreement gives the Optionee any right to continued service
as an employee of the Corporation or limits in any way the right of the
Corporation, its directors or its stockholders to terminate that service.
9. Certain Adjustments
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split, including the Reverse Stock Split
(as defined in the Purchase Agreement), stock combination, other change in
corporate structure affecting the Common Stock, or spin-off or other
distribution of assets to stockholders, an appropriate adjustment shall be made
to the number of shares of Common Stock subject to the Option, the Option Price
and the number of shares of Common Stock reserved for issuance under this
Agreement.
10. Miscellaneous Provisions
(a) Additional Documents. The Optionee hereby agrees to execute and deliver
such further documents and instruments as may be necessary or as may reasonably
be requested in order to effectuate fully the purposes, terms and conditions of
this Agreement, whether before, at, or after the exercise of the Option.
(b) Notices. All notices, demands, requests, or other communications that
may be or are required to be given, served, or sent by a party pursuant to this
Agreement shall be in writing and shall be (i) personally delivered, (ii) mailed
by first-class, registered or certified mail, return receipt requested, postage
prepaid, or (iii) sent by overnight delivery carrier, addressed as follows:
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(A) If to the Corporation:
LogiMetrics, Inc.
000 Xxxxxxxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx
Attention: Chairman of the Board
(B) If to the Optionee:
Xx. Xxxxxx X. Xxxxxx
0 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, Xxx Xxxxxx 00000
Each party may designate by notice in writing, in the manner described
above, a new address to which any notice, demand, request, or communication
required or permitted by this Agreement may be sent. Any notice, demand,
request, or communication that shall be delivered, mailed or transmitted in the
manner described above shall be deemed given, served, sent or received for all
purposes when it is delivered to the addressee. An affidavit of personal
delivery, the return receipt, or the delivery receipt shall be deemed
conclusive, but not exclusive, evidence of such delivery or when delivery is
refused by the addressee upon presentation.
(c) Severability. The invalidity of any one or more provisions hereof or of
any other agreement or instrument given pursuant to or in connection with this
Agreement shall not affect the remaining portions of this Agreement or any such
other agreement or instrument or any part thereof; and if one or more of the
provisions contained herein or therein should be invalid, or should operate to
render this Agreement or any such other agreement or instrument invalid, this
Agreement and such other agreements and instruments shall be construed as if
such invalid provisions had not been inserted.
(d) Survival. It is the express intention and agreement of the parties
hereof that all covenants and agreements made in this Agreement shall survive
the execution and delivery of this Agreement and the exercise (if any) of the
Option.
(e) Waivers. Neither the waiver by a party of a breach of or a default
under any of the provisions of this Agreement, nor the failure of a party, on
one or more occasions, to enforce any of the provisions of this Agreement or to
exercise any right, remedy, or privilege hereunder shall thereafter be construed
as a waiver of any subsequent breach or default of a similar nature, or as a
waiver of any such provisions, rights, remedies, or privileges hereunder.
(f) Binding Effect. Subject to any provisions hereof restricting transfer,
encumbrance and assignment, this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, personal
representatives, successors, and assigns.
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(g) Limitation on the Benefit of this Agreement. It is the explicit
intention of the parties hereto that no person or entity other than the parties
hereof (and any Permitted Transferees) is or shall be entitled to bring any
action to enforce any provisions of this Agreement against any parties hereto,
and that the covenants, undertakings, and agreements set forth in the Agreement
shall be solely for the benefit of, and shall be enforceable only by, the
parties hereto and their respective heirs, personal representatives, successors
and assigns as permitted hereunder.
(h) Entire Agreement. This Agreement contains the entire agreement among
the parties with respect to subject matter hereof, and supersedes all prior oral
or written agreements, commitments, or understandings with respect to the
matters provided for herein and therein.
(i) Headings. Article, section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed to
be part of this Agreement for any purpose, and shall not in any way define or
affect the meaning, construction or scope of any of the provisions hereof.
(j) Governing Law; Consent to Jurisdiction . This Agreement, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto,
shall be governed by and construed in accordance with the internal laws of the
State of Delaware without giving effect to the choice of law principles thereof.
Each of the parties hereto irrevocably submits and consents to the exclusive
jurisdiction of and laying of venue in the courts of the State of New York and
the United States District Court for the Southern District of New York for the
purpose of any suit, action, proceeding or judgment relating to or arising,
directly or indirectly, out of this Agreement and the transactions contemplated
hereby. Each party hereto irrevocably waives any objection to the exclusive
laying of venue of any suit, action or proceeding brought in such courts and
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum.
(k) Counsel. THE OPTIONEE REPRESENTS THAT HE AND/OR HIS OTHER PROFESSIONAL
ADVISORS HAVE HAD THE OPPORTUNITY TO REVIEW THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
LOGIMETRICS, INC.
By: /s/ Xxxxxxx X. Brand
--------------------------
Name: Xxxxxxx X. Brand
Title: Chairman of the Board
Witness: OPTIONEE
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------------- -----------------------------
Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx
-7-
EMPLOYMENT AGREEMENT
This Employment Agreement dated as of July 10, 2000 (this "Agreement"),
between LOGIMETRICS, INC., a Delaware corporation (the "Company"), and XXXXXXX
X. BRAND (the "Employee").
RECITALS
WHEREAS, that in connection with the purchase by L-3 Communications
Corporation ("L-3") of an equity interest in the Company, the Company and the
Employee desire to terminate the employment agreement, dated April 25, 1997 (the
"Existing Agreement"), by and between the Company and the Employee, and enter
into a new agreement for the Employee's services providing for all terms and
conditions of the Employee's continued employment;
WHEREAS, the covenant not to compete set forth in Section 6 is necessary
to protect the Company's legitimate business interests; and
WHEREAS, the Company desires to continue the employment of the Employee
with the Company on the terms and conditions hereof, and the obligations of the
Company and L-3 to effect the closing under the Purchase Agreement, dated July
10, 2000 (the "Purchase Agreement"), between the Company and the Employee, were
conditioned upon the Employee's agreement to be employed by the Company pursuant
to the terms and conditions of this Agreement (including Section 6), and the
Employee desires to be so employed by the Company;
NOW THEREFORE, the Company and the Employee, in consideration of the
premises, the mutual covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, and
intending to be legally bound, hereby agree as follows:
SECTION 1. EMPLOYMENT GENERALLY
1.1. Employment. The Company hereby offers the Employee employment, and
the Employee hereby accepts such offer of employment and agrees to perform his
duties and responsibilities hereunder, in accordance with the terms and
conditions hereinafter set forth.
1.2. Position and Duties. During the Employment Term (as defined in
Section 2),
the Employee shall serve on a full-time basis and devote his entire
working time, attention and energy exclusively to the Company as Senior Vice
President--Technology. The Employee shall report to the individual acting as or
appointed as the President of the Company. The Employee will perform such
executive, managerial and administrative duties as determined by the President
of the Company, will use his best efforts to promote the interests of the
Company, and will comply with all lawful directives, policies, procedures and
directions as may from time to time be given or determined by the Company.
1.3. Outside Activities. The Employee shall not engage in any activity
or investment if such activity or investment interferes with the performance of
his duties hereunder. Notwithstanding the foregoing, the Employee may engage in
charitable, educational, civic and similar activities and continue to be a
member of boards of directors of other businesses and charitable organizations,
and become a member of boards of directors of other businesses and charitable
organizations, subject to approval by the Board of Directors of the Company, to
the extent that such activities do not adversely affect the performance of his
duties hereunder.
1.4. Other Agreements Superseded. This Employment Agreement supersedes
and replaces all prior agreements and understandings (including the Existing
Agreement) between the Company and the Employee, whether written or oral,
relating to the subject matter hereof, and all such prior agreements and
understandings shall be null and void and without further effect as of the date
hereof.
SECTION 2. EMPLOYMENT TERM. Subject to the provisions of Section 4, the
term of this Agreement shall be for a period commencing on the date hereof and
ending on the earlier of (a) the second anniversary of the date hereof and (b)
termination of the Employee's employment pursuant to this Agreement (the
"Employment Term").
SECTION 3. COMPENSATION.
3.1. Base Salary. The Company agrees to pay, and the Employee agrees to
accept, as base compensation for all services to be rendered by the Employee
hereunder (including any services as an officer, director, employee or member of
any committee of the Company or any of its affiliates), the sum of $210,000 per
year (less appropriate deductions) (the "Base Salary"). The Base Salary shall be
payable in accordance with the ordinary payroll
practices of the Company. During the Employment Term, the Company shall, in good
faith, review the Base Salary in accordance with the Company's customary
procedures and practices regarding the salaries of similarly situated employees
and may, if determined by the Company to be appropriate, increase the Base
Salary following such review (it being understood and agreed by the Employee
that the Company shall not be obligated to increase the Base Salary), and "Base
Salary" for all purposes herein shall be deemed to be a reference to such higher
amount.
3.2. Additional Employee Benefits. Initially, the Employee shall receive
such employee benefits that are provided generally to the Company's employees as
of the date of the Purchase Agreement (collectively, the "LogiMetrics
Benefits"). After the date hereof, any of the LogiMetrics Benefits may be
amended, supplemented, terminated or modified from time to time by the Company,
so long as the Company provides the Employee with employee benefits similar to
those provided to other comparably situated Company employees.
3.3. Withholding. All payments due to the Employee hereunder shall be
subject to all applicable taxes required to be withheld by the Company pursuant
to federal, state or local law. The Employee shall be solely responsible for
income and earnings taxes imposed on the Employee by reason of any cash or
non-cash compensation and benefits provided hereunder.
3.4 Annual Bonus. The Employee shall be entitled to participate in any
cash bonus plan or arrangement in which key employees of the Company are
entitled to participate now or during the Employment Term. Any amount payable to
the Employee pursuant to any such cash bonus plan or arrangement shall be
determined by the Board of Directors of the Company or the Compensation
Committee thereof, in its sole discretion.
3.5 Deferred Payments. Not later than the date hereof, the Company shall
pay to the Employee the sum of $217,000 in full payment of (a) unpaid salary
previously deferred by the Employee, and (b) certain expense reimbursements
previously deferred by the Employee.
3.6 Term Life Insurance. The Company shall reimburse the Employee up to
$2,000 in any calendar year for premiums paid by the Employee to maintain a term
insurance policy insuring the life of the Employee in the face amount of
$1,000,000.
3.7 Vacation. The Employee shall be entitled to four weeks of vacation
in each calendar year during the Employment Term and shall be entitled to carry
over all, part or none of
such vacation in accordance with any vacation policy maintained by the Company
for senior executives.
3.8 Expense Reimbursement. The Company shall pay or reimburse the
Employee for all reasonable travel or other expenses incurred by the Employee in
connection with the performance of his duties and obligations under this
Agreement, subject to the Employee's presentation of appropriate vouchers and/or
receipts in accordance with such procedures as the Company may from time to time
establish for senior officers and to preserve any deductions for Federal income
taxation purposes to which the Company may be entitled.
SECTION 4. TERMINATION.
4.1. Termination Events. The Employee's employment with the Company and
the Employment Term shall terminate upon the earliest occurrence of any of the
following events:
(a) The death or resignation of the Employee.
(b) The termination of the Employee's employment by the Company for
Cause (as defined in Section 4.3(a)).
(c) The termination of the Employee's employment by the Company for
Employee Disability.
(d) The termination of the Employee's employment by the Employee for
Good Reason.
(e) The termination of the Employee's employment other than pursuant
to clauses (a), (b), (c) or (d) above.
4.2. Effect of Termination.
(a) If the Employee's employment with the Company is terminated pursuant
to Section 4.1(a), 4.1(b) or 4.1(c), then the Company shall pay the Employee (or
his estate in the event of his death) any portion of the Base Salary accrued
hereunder on or prior to the date of termination but not paid. The Employee
shall not be entitled to any other payments hereunder.
(b) If the Employee's employment with the Company is terminated pursuant
to Section 4.1(d) or 4.1(e), the Employee shall continue to be paid his Base
Salary in accordance
with the Company's usual payroll practices until the later to occur of (i) the
second anniversary of the date hereof and (ii) 12 months after the end of the
Employment Term (the "Severance Period").
4.3. Definitions.
(a) As used herein, the term "Cause" shall mean: (i) gross neglect of or
willful and continuing refusal by the Employee to substantially perform his
duties hereunder (other than due to death or Disability); (ii) any breach of the
provisions of Section 5 or Section 6 by the Employee; (iii) willfully engaging
in conduct that is demonstrably injurious to the Company or the Company's
subsidiaries or affiliates by the Employee; and/or (iv) conviction of, or plea
of nolo contendere, by Employee to (A) any felony, or (B) a misdemeanor
involving moral turpitude.
Termination of the Employee pursuant to Section 4.1(b) shall be made by
delivery to the Employee of written notice, given at least five days prior to
such termination, from the Board of Directors of the Company (the "Board")
specifying the particulars of the conduct by the Employee 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 the Employee shall have had the opportunity
(along with counsel) to be heard, unless, within five days after receiving such
notice, the Employee 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 clause (ii) or (iv) above. As long as the Employee is
on the Board, he shall reasonably cooperate to cause a valid Board meeting to
occur.
(b) As used herein, the term "Disability" shall mean the Employee's
absence from the full-time performance of the Employee's duties pursuant to a
reasonable determination made in accordance with the Company's then existing
disability plan that the Employee 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.
(c) As used herein, the term "Good Reason" means (i) any reduction by
the Company in Employee's Base Salary, (ii) any material adverse change in the
reporting lines described in Section 1.2, (iii) any material diminution or
material adverse change in the
Employee's titles, duties or responsibilities, unless due to a promotion or
increased responsibility of the Employee, or (iv) the relocation of the
Company's executive offices more than 50 miles outside Eatontown, New Jersey or
Bohemia, New York without the Employee's prior written consent.
4.4. Other Consequences of Termination.
(a) In the event of the termination of the Employment Term, for whatever
reason, the Employee agrees to cooperate with the Company and to be reasonably
available to the Company with respect to continuing and/or future matters
arising out of the Employee's employment or any other relationship with the
Company or its affiliates, whether such matters are business-related, legal or
otherwise. The Company agrees to reimburse the Employee for the Employee's
reasonable out-of-pocket expenses incurred in complying with the terms of this
Section 4.4(a) upon delivery by the Employee to the Company of valid receipts
for such expenses.
(b) Subject to the other provisions of this Agreement and the terms of
any benefit plan or arrangement in which the Employee participates, the payments
upon termination pursuant to this Section 4 shall constitute the exclusive
payments due the Employee upon termination under this Agreement. The Employee
shall not be required to mitigate the amount of any payment provided for in this
Agreement by seeking other employment or otherwise.
(c) Upon the termination of the Employment Term for any reason, the
Employee 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 the Employee's possession or under his control,
including all copies of any of the foregoing.
(d) The provisions of this Section 4 and of Sections 5 and 6 shall
survive the expiration or earlier termination of the Employment Term and this
Agreement.
SECTION 5. CONFIDENTIALITY; PUBLIC STATEMENTS
5.1. Confidential and Proprietary Information. (a) In addition to the
confidential and proprietary information that the Employee heretofore developed,
conceived, learned or
became aware of as an employee, proprietor, owner, director, officer or
stockholder of LogiMetrics (the "Prior Trade Secrets"), the Company and its
affiliates may, pursuant to the Employee's employment hereunder, provide to him
and confide in him additional confidential and proprietary information
(collectively, the "Additional Trade Secrets"), including without limitation:
(i) business methods and systems, techniques and methods of operation developed
by the Company or its affiliates and which the Employee recognizes to be unique
assets of the business of the Company and its affiliates; (ii) any sales
prospects, customer lists, products, research or data of any kind; (iii) any
information relating to strategic plans, sales costs, profits or the financial
condition of the Company, its affiliates or any of their customers or
prospective customers, which is not generally known to the public; or (iv)
computer programs and software, including without limitation source code, object
code and data. All the Prior Trade Secrets and all the Additional Trade Secrets
are herein sometimes referred to collectively as "Trade Secrets". The Employee
shall not, either during or at any time after the termination of his employment
with the Company, directly or indirectly, in any manner utilize or disclose any
Trade Secrets to any individual, firm, corporation, company, association or
other entity without the prior consent of the Company (unless legally compelled
to do so, but subject to the provisions of Section 5.1(b)). The term "Trade
Secrets", however, does not include information, knowledge or factual data that:
(A) becomes part of the public knowledge or literature other than by reason of
any inaction or action of the Employee; or (B) was disclosed to the Employee
without restriction by a third party having the right to disclose the same. The
Employee further covenants and agrees that he will promptly deliver to the
Company all tangible evidence of Trade Secrets, prior to or at the termination
of the Employee's employment.
(b) If the Employee becomes legally compelled (by deposition,
interrogatory, request for documents, order, subpoena, civil investigative
demand or similar process issued by a court of competent jurisdiction or by a
governmental body) to disclose any Intellectual Property (as defined below) of
the Company or any of its affiliates, then the Employee will give prompt prior
written notice of such requirement to the Company so that the Company or any of
its affiliates may seek a protective order or other appropriate remedy and/or
waive compliance with the terms of this Agreement. If such protective order or
other remedy is not obtained, and irrespective of whether or not compliance with
the provisions hereof is waived, then it is agreed that only that portion of the
Intellectual Property of the Company or any of its affiliates, which
the Employee is advised in writing by the Employee's counsel is legally required
to be disclosed, will be disclosed by the Employee, and reasonable efforts will
be made by him to obtain assurance that confidential treatment will be accorded
such portion of such Intellectual Property.
5.2. Trade Secrets
(a) The Employee agrees that any Trade Secret, invention, improvement,
patent, patent application or writing, and any program, method, process, system
or novel technique (whether or not capable of being trademarked, copyrighted or
patented) (collectively, "Intellectual Property"), conceived, devised,
developed, owned or otherwise obtained by him, whether solely or jointly with
others, either (i) as an employee, proprietor, owner, officer, director or
stockholder of LogiMetrics prior to the date hereof, or (ii) during the
Employment Term relating to the business of the Company or any of its
Subsidiaries, shall in each and every case be and become the property of the
Company. The Employee agrees to give the Company prompt notice of his
conception, invention, authorship, development or acquisition of any
Intellectual Property and, without additional consideration, to execute such
instruments of transfer, assignment, conveyance or confirmation and such other
documents, and to do all appropriate lawful acts, as may be requested by the
Company to transfer, assign, confirm, and perfect in the Company or its
affiliates all legally protectable rights in any Intellectual Property
throughout the world.
(b) The Employee hereby assigns and conveys to and confirms in the
Company the entire right, title and interest in and to the Intellectual
Property, conceived, devised, developed, owned or otherwise obtained by him,
whether solely or jointly with others, as an employee, proprietor, owner,
officer, director or stockholder of LogiMetrics or any of its subsidiaries (or
any predecessor company) prior to the date hereof (the "Prior Intellectual
Property"), or on or after the date hereof and through the end of the Employment
Term relating to the business of the Company or any of its Subsidiaries (the
"Future Intellectual Property"), and every priority right that is or may be
predicated upon or arises from any of the Prior Intellectual Property or any of
the Future Intellectual Property.
(c) The Employee, upon the Company's reasonable request and at its
expense, but without additional consideration to the Employee, shall execute
such instruments of transfer, assignment, conveyance or confirmation and such
other documents, and shall do all appropriate
lawful acts, as may be requested by the Company to transfer, assign, confirm and
perfect in the Company or its affiliates all legally protectable rights in any
Intellectual Property, whether Prior Intellectual Property or Future
Intellectual Property, throughout the world.
(d) The Employee represents and warrants that no entity in which the
Employee has an equity interest has any right, title or interest in and to the
Company's Intellectual Property. Without limiting the rights or remedies of the
Company in the event of a breach of the foregoing representation and warranty,
the Employee will cause any such entity in which the Employee has an equity
interest to execute such instruments of transfer, assignment, conveyance or
confirmation and such other documents, and shall do all appropriate lawful acts,
as may be requested by the Company to transfer, assign, confirm and perfect in
the Company or its affiliates all legally protectable rights in any Intellectual
Property, whether Prior Intellectual Property or Future Intellectual Property,
throughout the world.
5.3. Prohibited Public Statements. During the Employment Term, the
Employee shall not make any public statement reflecting adversely on the
Company, its affiliates or their business prospects, except for such statements
which the Employee is required to make by law.
SECTION 6. NON-COMPETE. In further consideration of the Company's
covenants and agreements contained in this Agreement, the Employee agrees to
abide by the terms and conditions contained in this Section 6. The Employee
further acknowledges the sufficiency and receipt of the consideration given in
this Agreement for purposes of enforcing the non-compete provisions contained in
this Section 6.
During the Non-Competition Period (as defined below), Employee will not,
and will cause his affiliates not to, directly or indirectly, design,
manufacture, market or sell products or provide services which are competitive
to those products manufactured and sold by LogiMetrics during the Employment
Term or at the end of the Employment Term or those services provided by
LogiMetrics to its customers (including improvements or extensions of such
products or services) ("Competitive Products and Services").
During the Non-Competition Period, the Employee will not, and will cause
his affiliates not to, directly or indirectly, induce or solicit, or aid or
assist any person or entity to induce or solicit, any employees, salespersons,
agents, consultants, distributors, representatives,
advisors, customers or suppliers of Buyer or the Business to terminate, curtail
or otherwise limit their employment by or business relationship with Buyer or
the Business.
As used herein, "Non-Competition Period" shall mean the period beginning
on the date hereof and ending on the first anniversary of the last day of the
Employment Term.
The parties hereto agree that the provisions of this Section 6 are
reasonable. If a court determines, however, that any provision of this Section 6
is unreasonable, either in period of time, geographical area or otherwise, then
the parties hereto agree that the provisions of this Section 6 should be
interpreted and enforced to the maximum extent which such court deems
reasonable.
SECTION 7. ENTIRE AGREEMENT. This Agreement constitutes the full and
complete understanding and agreement of the Employee and the Company respecting
the subject matter hereof, and supersedes all prior understandings and
agreements, oral or written, express or implied, respecting the Employee's
employment with the Company.
SECTION 8. HEADINGS. The headings of this Agreement are for convenience
of reference only and are not to be considered in the interpretation of the
terms and conditions of this Agreement.
SECTION 9. NOTICES. Any notice, consent, approval or other communication
required or permitted to be given under this Agreement (each a "Notice") shall
be in writing and shall be given by personal delivery, by nationally recognized
overnight courier or by registered or certified mail, postage prepaid, addressed
as follows:
If to the Company:
LogiMetrics, Inc.
000 Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chairman of the Board of Directors
With a copy to:
L-3 Communications Corporation
Xxxxx Microwave East Division
000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: President
If to the Employee, at his personal residence, as reflected in the
personnel records of the Company.
Any party may change the persons and addresses to which notices are to
be sent by giving a Notice of such change to the other party in the manner
provided herein for giving Notices.
A Notice given hereunder shall be deemed given upon actual receipt or
refusal of receipt.
SECTION 10. WAIVER OF BREACH. No waiver by either party of any condition
or of the breach by the other party of any term or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed or construed as a further or continuing waiver of any such condition
or breach or a waiver of any other condition, or of the breach of any other term
or covenant set forth in this Agreement. Moreover, the failure of either party
to exercise any right hereunder shall not bar the later exercise thereof.
SECTION 11. BINDING; NONALIENATION. This Agreement shall inure to the
benefit of and be binding on (a) the Company and its successors and assigns, and
(b) the Employee. The Employee shall not pledge, hypothecate, anticipate or in
any way create a lien upon any amounts provided under this Agreement. This
Agreement and the benefits payable hereunder shall not be assignable by the
Employee; provided, however, that nothing in this Section shall preclude the
Employee from designating a beneficiary to receive any benefit payable hereunder
upon his death, or the executors, administrators or other legal representatives
of the Employee or his estate from assigning any rights hereunder to which they
become entitled, to the person or persons entitled thereto under applicable law.
SECTION 12. GOVERNING LAW. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect by the internal
laws of the State of New York without giving effect to the conflict of laws
rules thereof.
SECTION 13. CONTINUATION OF COVENANTS. Those covenants and
agreements of the Employee contained in this Agreement that by the terms thereof
are intended to continue to operate after termination of the Employee's
employment, including without limitation the covenants and agreements in
Sections 5 and 6, shall survive termination of the Employee's employment with
the Company.
SECTION 14. INVALIDITY OR UNENFORCEABILITY. If any term or provision of
this Agreement is held to be invalid or unenforceable, for any reason, then such
invalidity or unenforceability shall not affect any other term or provision
hereof and this Agreement shall continue in full force and effect as if such
invalid or unenforceable term or provision (to the extent of the invalidity or
unenforceability) had not been contained herein.
SECTION 15. COUNTERPARTS. This Agreement may be executed (including by
facsimile transmission) with counterpart signature pages or in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
SECTION 16. AMENDMENTS. No provision of this Agreement may be amended,
waived or discharged unless such waiver, amendment or discharge is agreed to in
writing and signed by the parties.
SECTION 17. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur if any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United States
or any state having jurisdiction, this being in addition to any other remedy to
which they are entitled at law or in equity.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first written above.
LOGIMETRICS, INC.
By:
----------------------------
Name:
Title:
-------------------------------
XXXXXXX X. BRAND
SCHEDULE 1.2(a)
EXISTING HOLDER SECURITIES
LogiMetrics, Inc.
Schedule 1.2(a)
As of 7/10/00
Existing Holders (1)
Common ISO's Non-
Name Stock Held Vested Quals TOTALS
---------- ------ ----- ------
Xxxxxxx X. Brand 7,006,810 20,000 - 7,026,810
LFH LLC (2) 10,000,000 10,000,000
Xxxxxx X. Xxxxxx 1,286,065 415,000 410,000 2,111,065
Xxxx X. Xxxxxx 1,007,274 20,000 170,000 1,197,274
Phineas Broadband Systems, LP (3) 1,506,025 1,506,025
MBF Broadband Systems, Inc. (3) 1,241,031 1,241,031
MBF Capital Corp. (3) 303,242 303,242
Cerberus Partners, LP 6,637,817 - - 6,637,817
Xxxxxxx Xxxxxxxxxxx 229,340 - - 229,340
Kabuki Partners ADP, GP (4) 976,985 976,985
Whitehall Properties, LLC (4) 2,426,968 2,426,968
Xxxxxx Equities Corp. (4) 4,268,797 4,268,797
Xxxxxx X. Xxxxxx 3,980,698 - - 3,980,698
A.C. Israel Enterprises, Inc. 3,980,698 - - 3,980,698
CRM Partners, LP 2,242,270 - - 2,242,270
CRM 1997 Enterprise Fund, LLC 2,611,789 - - 2,611,789
CRM 1998 Enterprise Fund, LLC 3,206,458 - - 3,206,458
CRM Retirement Partners, LP 1,281,274 - - 1,281,274
CRM Madison Partners, LP 1,257,804 - - 1,257,804
L.A.D. Equity Partners, LP 751,803 - - 751,803
Xxxxx Xxxxxx 353,640 353,640
CRM-EFO Partners, LP 1,015,290 - - 1,015,290
CRM U.S. Value Fund, Ltd. 421,474 - - 421,474
Eurycleia Partners, LP 246,897 246,897
Xxxxxxx X. Xxxx, Xx. 541,304 541,304
Xxxxxx Xxxxxxxxx XxXxxxx, LLC and as agent 1,959,397 - 1,959,397
CRM, Inc., as agent 1,250,000 1,250,000
XxXxxxx Family Partnership LP 396,868 - - 396,868
Xxxxxx X. Xxxxxxxxx Xxxxx 396,868 - - 396,868
Xxxx X. Xxxxxx 396,868 - - 396,868
Xxxxxx X. Xxxxxxx III 198,443 - - 198,443
64,415,197
Notes:
(1) Payment-In-Kind interest calculated up to and including July 10, 2000.
(2) Mr. Brand is the sole officer and director of LFH LLC. Accordingly, Mr.
Brand is deemed to be the beneficial owner of all shares of Common Stock
beneficially owned by the above named entity.
(3) Xx. Xxxxxx is the sole officer, director and shareholder of MBF Capital
Corporation and MBF Broadband Systems, Inc., the general partner of both MBF
Broadband Systems, Inc., and Phineas Broadband Systems, LP Accordingly, Xx.
Xxxxxx is deemed to be the beneficial owner of all shares of Common Stock
beneficially owned by the above named entities.
(4) Xx. Xxxxxxxxxxx is the controlling general partner of Kabuki Partners ADP,
GP, a member of Whitehall Properties LLC, and an officer of Xxxxxx Equities
Corp. Accordingly, Xx. Xxxxxxxxxxx may be deemed to be the beneficial owner of
all shares of Common Stock beneficially owned by the above named entities.
Page 1
SCHEDULE 2.3
EXISTING HOLDER WARRANT EXCHANGE*
Series of Warrants Name of Holder Number of Shares
------------------ -------------- of Common Stock actually issued in
Exchange for Warrants
---------------------
SERIES B WARRANTS Xxxx X. Xxxxxx 413,494
SERIES C WARRANTS Cerberus Partners, LP 2,542,380
SERIES E WARRANTS Xxxxxx X. Xxxxxx 224,707
SERIES F WARRANTS Xxxxxx X. Xxxxxx 97,522
SERIES G WARRANTS Phineas Broadband Systems, LP 397,591
MBF Broadband Systems, LP 384,766
MBF Capital Corp. 303,242
Kabuki Partners ADP, GP 76,954
Whitehall Properties, LCC 397,983
Xxxxxx Equities Corp. 795,967
Xxxxxx X. Xxxxxx 769,530
A.C. Israel Enterprises, Inc. 769,530
CRM Partners, LP 602,942
CRM 1997 Enterprise Fund, LLC 734,692
CRM Retirement Partners, LP 334,968
CRM Madison Partners, LP 334,968
L.A.D. Equity Partners, LP 237,943
CRM-EFO Partners, LP 192,383
CRM U.S. Value Fund, Ltd. 115,429
Eurycleia Partners, LP 76,547
Xxxxxxx X. Xxxx, Xx. 115,429
Xxxxxx Xxxxxxxxx XxXxxxx, LLC and as agent 524,744
XxXxxxx Family Partnership LP 76,953
Xxxxxx X. Xxxxxxxxx Xxxxx 76,953
Xxxx X. Xxxxxx 76,953
Xxxxxx X. Xxxxxxx III 38,476
* The face amount of Common Stock purchasable upon exercise of all the
warrants prior to the Existing Holder Warrant Exchange was 14,993,329.
SERIES H WARRANTS Phineas Broadband Systems, LP 771,084
MBF Broadband Systems, LP 19,960
Kabuki Partners ADP, GP 3,992
Whitehall Properties, LCC 19,960
Xxxxxx Equities Corp. 39,921
Xxxxxx X. Xxxxxx 39,921
A.C. Israel Enterprises, Inc. 39,921
CRM Partners, LP 31,279
CRM 1997 Enterprise Fund, LLC 38,113
CRM Retirement Partners, LP 17,377
CRM Madison Partners, LP 17,377
L.A.D. Equity Partners, LP 12,343
CRM-EFO Partners, LP 9,980
CRM U.S. Value Fund, Ltd. 5,988
Eurycleia Partners, LP 3,971
Xxxxxxx X. Xxxx, Xx. 5,988
Xxxxxx Xxxxxxxxx XxXxxxx, LLC and as agent 14,072
XxXxxxx Family Partnership LP 3,992
Xxxxxx X. Xxxxxxxxx Xxxxx 3,992
Xxxx X. Xxxxxx 3,992
Xxxxxx X. Xxxxxxx III 1,996
SERIES I WARRANTS Phineas Broadband Systems, LP 337,350
MBF Broadband Systems, LP 8,733
Kabuki Partners ADP, GP 1,747
Whitehall Properties, LCC 8,733
Xxxxxx Equities Corp. 17,465
Xxxxxx X. Xxxxxx 17,465
A.C. Israel Enterprises, Inc. 17,465
CRM Partners, LP 13,684
CRM 1997 Enterprise Fund, LLC 16,674
CRM Retirement Partners, LP 7,603
CRM Madison Partners, LP 7,603
L.A.D. Equity Partners, LP 5,401
CRM-EFO Partners, LP 4,366
CRM U.S. Value Fund, Ltd. 2,620
Eurycleia Partners, LP 1,737
Xxxxxxx X. Xxxx, Xx. 2,620
Xxxxxx Xxxxxxxxx XxXxxxx, LLC and as agent 6,157
XxXxxxx Family Partnership LP 1,747
Xxxxxx X. Xxxxxxxxx Xxxxx 1,747
Xxxx X. Xxxxxx 1,747
Xxxxxx X. Xxxxxxx III 873
TOTAL: 12,301,802
==========
SCHEDULE 5.1
CRM RELATED PERSONS
Xxxxxx Xxxxxxxxx XxXxxxx, LLC
Xxxxxx X. Xxxxxxxxx, Xxxxx
CRM 1997 Enterprise Fund, LLC
CRM 1998 Enterprise Fund, LLC
CRM Partners, L.P.
CRM Retirement Partners, L.P.
CRM Madison Partners, L.P.
CRM U.S. Value Fund, LTD.
CRM-EFO Partners, X.X.
XxXxxxx Family Partnership L.P.
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxx
