EXHIBIT 10.1
[AS AMENDED TO DATE]
PUT AGREEMENT
THIS PUT AGREEMENT (the "Agreement") dated as of March 27, 2001 by and
between GENERAL DYNAMICS GOVERNMENT SYSTEMS CORPORATION ("GSC"), and EZENIA!
INC. (the "Company").
This Agreement is being executed in connection with the consummation of the
transactions contemplated in the Asset Purchase Agreement (the "Asset Purchase
Agreement") dated December 28, 2000, as amended, between the parties. (Unless
otherwise stated, all capitalized terms used in this Agreement will have the
meaning ascribed to them in the Asset Purchase Agreement). As partial
consideration for the Purchased Assets, the Company is delivering to GSC 400,000
shares (the "Shares") of its common stock (the "Common Stock"), along with
certain put rights set forth herein. This Agreement sets forth the terms and
conditions relating to such put rights.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. GRANT OF PUT RIGHT. At any time after (i) January 4, 2002, with respect
to 110,000 of the Shares and (ii) December 1, 2002, with respect to the
remaining 290,000 Shares, and continuing for a period of thirty (30) days after
each date respectively, until exercised, GSC will have the right (the "PUT
RIGHT") to elect to sell the Shares to the Company, and the Company will be
required to purchase such Shares from GSC, for a purchase price per Share equal
to the Purchase Price (as defined below); provided, however, that the Put Right
will expire at such time as the last reported closing price of the Common Stock,
as reported on the Nasdaq National Market (or such national securities exchange
on which the Common Stock may be then listed), has been equal to or greater than
$11.00 per share for fifteen (15) consecutive trading days. Unless otherwise
defined herein, capitalized terms used in this Section will have the meaning
ascribed to them in the Put Agreement.
2. PRICING; PAYMENT. The purchase price paid by the Company for any Shares
purchased pursuant to this Agreement will be a minimum of ten ($10.00) dollars
per Share (the "Purchase Price"), payable to GSC, in cash, by wire transfer of
immediately available funds to an account designated by GSC. In the event of a
capital reorganization affecting the Common Stock, a merger or consolidation of
the Company with or into another corporation, or a sale of all or substantially
all of the Company's capital stock or assets to any other person, then, as a
part of such event or transaction, lawful provision shall be made so that GSC
shall thereafter be entitled to receive, upon any exercise of the Put Right an
amount of cash equal to: (i) Four Million Dollars ($4,000,000) (the "Full
Amount") if exercised in full, or (ii) the percentage of the Shares exercised
pursuant to this Agreement multiplied by the Full Amount if exercised in part.
3. EXERCISE OF PUT RIGHT; CLOSING OF SALE. In order to exercise a Put
Right, GSC will deliver written notice of such exercise to the Company. The
closing of the purchase and sale of Shares pursuant to this Agreement will take
place within thirty (30) days following the Company's receipt of such notice.
4. RIGHT OF FIRST REFUSAL. Prior to selling any of the Shares on the open
market, GSC will deliver to the Company a written notice indicating the number
of Shares for sale and confirming the market price. In the event that the
Company desires to purchase such Shares for its own account, the Company may
elect to do so by delivering to GSC, within five (5) days after receipt of GSC's
notice of intent to sell the Shares, written notice of its election to purchase
the Shares from GSC at the market price. The closing of the Company's purchase
of the Shares will take place within thirty (30) days following the Company's
receipt of GSC's notice of intent to sell the Shares. Payment to GSC will be in
cash, in accordance with requirements set forth in Section 2.
5. MISCELLANEOUS.
(a) SUCCESSORS AND ASSIGNS. No party hereto may assign or delegate any
of such party's rights or obligations under or in connection with this
Agreement without the written consent of the other party hereto; provided
that GSC may without the written consent of the Company assign its rights
under this Agreement to one or more of its Affiliates. No assignment by the
GSC pursuant to the proviso of the preceding sentence will release the GSC
of any of its obligations under this Agreement or waive or release any
right or remedy the Company may have against GSC hereunder or thereunder.
Except as otherwise expressly provided herein, all covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto or
thereto will be binding upon and enforceable against the respective
successors and assigns of such party and will be enforceable by and will
inure to the benefit of the respective successors and permitted assigns of
such party.
(b) SEVERABILITY. Whenever possible, each provision of this Agreement
will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision will be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(c) COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will
constitute one and the same Agreement.
(d) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(e) NO THIRD-PARTY BENEFICIARIES. This Agreement will not confer any
rights or remedies upon any person other than the Company and GSC and their
respective successors and permitted assigns.
(f) ENTIRE AGREEMENT. This Agreement (including the documents referred
to herein) and the Asset Purchase Agreement constitute the entire agreement
among the parties and supersedes any prior understandings, agreements or
representations by or among the parties, written or oral, that may have
related in any way to the subject matter hereof.
(i) GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT AND THE EXHIBITS AND
SCHEDULES HERETO WILL BE GOVERNED BY THE INTERNAL LAW, AND NOT THE LAW
OF CONFLICTS, OF THE STATE OF DELAWARE.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first written above.
EZENIA! INC.
By: /S/ XXXXXXX X. XXXXXXX
--------------------------------------------
Name: XXXXXXX X. XXXXXXX
--------------------------------------------
Its: CHIEF FINANCIAL OFFICER
--------------------------------------------
GENERAL DYNAMICS GOVERNMENT SYSTEMS CORPORATION
By: /S/ XXXX X. XXXXXXX
--------------------------------------------
Name: XXXX X. XXXXXXX
--------------------------------------------
Its: VICE PRESIDENT
--------------------------------------------
