EXCHANGE AGREEMENT
EXHIBIT 10.2
EXECUTION COPY
EXCHANGE AGREEMENT, dated September 4, 2008 (this “Agreement”), is among LCC International,
Inc., a Delaware corporation (the “Company”), the Investors listed on the signature pages hereto
(collectively, the “Investors”) and the Guarantors (as defined below).
WITNESSETH:
WHEREAS, the Investors currently hold shares of the Company’s Series A Convertible Preferred
Stock, par value $0.01 per share (the “Series A Preferred Stock”) as set forth on Schedule
1 attached hereto, convertible into the Company’s Class A Common Stock, par value $0.01 per
share (the “Common Stock”); and
WHEREAS, the Company and the Investors are party to that certain Registration Rights
Agreement, dated as of April 19, 2007, as amended (the “Registration Rights Agreement”), pursuant
to which, among other things, the Company agreed to register the shares of Common Stock into which
the Preferred Stock is convertible with the Securities and Exchange Commission (the “SEC”) for
resale pursuant to the Securities Act of 1933, as amended (the “Act”); and
WHEREAS, the Company and Bank of America, N.A. (“Lender”) are party to that certain Amended
and Restated Credit Agreement, dated as of May 29, 2007, as amended (the “Credit Agreement”); and
WHEREAS, Lender has agreed to provide a new $9,000,000 term loan tranche (the “Tranche”) of
the existing Credit Agreement ranking pari passu with the current obligations under the Credit
Agreement in exchange for a limited guaranty (the “Guaranty”) by affiliates of the Investors (the
“Guarantors”) in an amount up to $9,000,000 and a deposit of cash by the Investors as collateral
for the Guaranty in the amount of $9,000,000 (the “Deposit”), which amount of cash will be pledged
to Lender; and
WHEREAS, as an incentive for the Investors to cause the Guarantors to provide the Guaranty and
the Deposit for the benefit of the Company, the Company will, among other things, issue certain
warrants to the Guarantors and exchange the Investors’ existing Series A Preferred Stock specified
on Schedule 1 attached hereto for shares of the Company’s Series B Convertible Preferred
Stock, par value $0.01 per share (the “Series B Preferred Stock”) in the amount or amounts
specified on Schedule 1 attached hereto, all on the terms and subject to the conditions
provided herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and intending to be
legally bound, the parties hereto agree as follows:
Section 1. Exchange. At the Closing (as defined below), the Company shall exchange the
existing Series A Preferred Stock specified on Schedule 1 attached hereto owned by each
Investor for shares of the Series B Preferred Stock in the amount or amounts specified on
Schedule 1 attached hereto, such Series B Preferred Stock to have the relative rights,
preferences and designations set forth in Exhibit B attached hereto (the “Series B
Certificate of Designations”). In accordance with the terms of the Series B Certificate of
Designations, the Series B Preferred Stock shall be convertible into or otherwise exchangeable for
Common Stock of the Company to the extent specified therein. The Company shall file a
contemporaneous amendment and restatement of the Certificate of Designations, Preferences and
Rights of Series A Convertible Preferred Stock (the “Amended and Restated Series A Certificate of
Designations”) in the form attached hereto as Exhibit A to make the Series A Preferred
Stock rank pari passu with the Series B Preferred Stock and effect certain other amendments to the
terms of such Series A Preferred Stock.
Section 2. Warrants. Contemporaneously with the execution of the Guaranty by the Guarantors
and the delivery thereof to the Lender and the provision of the Deposit to the Lender, the Company
shall issue to each Guarantor a warrant to purchase shares of the Company’s Series C Preferred
Stock, par value $0.01 (the “Series C Preferred Stock”) in the form attached hereto as Exhibit
D (each, a “Warrant”), and in the amount as set forth on Schedule 1 attached hereto.
The exercise price per share for such Warrant shall be as set forth in the Warrant and on the terms
and subject to the conditions set forth therein. The Series C Preferred Stock shall have the
rights, preferences and designations set forth in the Certificate of Designations, Preferences and
Rights of Series C Preferred Stock (the “Series C Certificate of Designations,” together with the
Amended and Restated Series A Certificate of Designations and the Series B Certificate of
Designations, the “Certificate of Designations”) in the form attached hereto as Exhibit C.
Section 3. Additional Agreements.
(a) On the date hereof, the Company shall notify Nasdaq that it is voluntarily delisting its
Common Stock from The Nasdaq Global Market exchange, and shall thereafter take any and all actions
required to accomplish such delisting as promptly as practicable, and in any event by no later than
September 30, 2008;
(b) On or prior to the Closing, the Company shall have duly filed the Certificate of
Designations with the Secretary of State of the State of Delaware;
(c) The Company shall take any and all actions necessary or desirable on its part to complete
the exchange of Series A Preferred Stock for Common Stock described in Section 8(a)(vi);
(d) The Company shall take any and all actions necessary or desirable on its part to enter
into the amendment to the Credit Agreement described in Section 8(a)(vii);
(e) The Company shall cause its counsel to deliver the legal opinion required pursuant to
Section 8(a)(x);
(f) The Investors shall take any and all actions necessary or desirable on their part to cause
the Guarantors to deliver the Guaranty to the Lender and to provide the Deposit to the Lender; and
(g) The Investors shall, in their capacity as holders of Series A Preferred Stock, consent to
the amendments set forth in the Amended and Restated Series A Certificate of Designations.
(h) The Investors shall, in their capacity as holders of Common Stock and Series A Preferred
Stock, consent to any amendments to the Company’s Restated Certificate of Incorporation required to
authorize additional shares of Common Stock in order to allow any existing holders of Series A
Preferred Stock to convert their shares into Common Stock.
Section 4. Registration Rights.
(a) Effective at the Closing, the Registration Rights Agreement shall be amended as follows:
(i) Section 1 shall be amended to include the following definitions:
“Exchange Agreement’ means the Exchange Agreement, dated as of September 4, 2008,
among the Company and the Investors.”
“Series A Preferred Stock’ means the Series A Convertible Preferred Stock, par value
$0.01 per share, issued pursuant to the terms of the Exchange and Settlement Agreement.”
“Series B Preferred Stock’ means the Series B Convertible Preferred Stock, par value
$0.01 per share, issued pursuant to the terms of the Exchange Agreement.”
(ii) The definition of “Preferred Stock” shall be deleted in its entirety and replaced to read
as follows:
“Preferred Stock’ shall mean the Series A Preferred Stock and the Series B Stock,
collectively or separately as the context may require.”
(b) Except as expressly modified hereby, the Registration Rights Agreement shall remain in
full force and effect.
Section 5. Exchange and Settlement Agreement. Each of the Investors hereby acknowledges and
agrees that effective as of Closing, it shall continue to comply with Section 10 of the Exchange
and Settlement Agreement (as defined in the Registration Rights Agreement), as if the shares of
Series B Preferred Stock were Shares (as such term is defined in the Exchange and Settlement
Agreement).
Section 6. Company Representations. The Company hereby represents and warrants to each of
the Investors and Guarantors as follows:
(a) The Company is duly organized and validly existing under the laws of the State of Delaware
and has full power and authority to execute and deliver this Agreement and to perform its
obligations hereunder, all of which have been duly authorized by all requisite corporate action
except for those approvals of stockholders which are contemplated by this Agreement, which shall
have been obtained prior to Closing. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms.
(b) No notice to, filing with, or authorization, registration, consent or approval of any
governmental authority or other person is necessary for the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated hereby or thereby by the
Company, except for filing the Certificate of Designations with the Secretary of State of the State
of Delaware, submitting notices and filings in connection with the delisting of the Company’s
Common Stock from The Nasdaq Global Market exchange and customary post-closing filings required
pursuant to applicable securities laws which will be made in the ordinary course.
(c) The shares of Series B Preferred Stock to be issued hereunder have been duly and validly
authorized and, when issued pursuant to this Agreement, will be validly issued, fully paid and
nonassessable, and shall be free and clear of all Encumbrances (other than those created by the
Investors) and will be entitled to the relative rights, powers and preferences set forth in the
Series B Certificate of Designations. The Common Stock issuable upon the due conversion or other
exchange of the Series B Preferred Stock in accordance with the Series B Certificate of
Designations, will, when issued, be validly issued, fully paid and nonassessable, and shall be free
and clear of all Encumbrances (other than those created by the Investors).
(d) The Warrants to be issued hereunder have been duly and validly authorized and, will
constitute, when executed and delivered, the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating
to or affecting creditors’ rights generally. Upon the exercise of the Warrants and payment of the
exercise price therefor, all in accordance with the terms therein, the shares of Series C Stock
issuable upon such exercise shall be validly issued, fully paid and nonassessable, and shall be
free and clear of all Encumbrances (other than those created by the Investors) and will be entitled
to the relative rights, powers and preferences set forth in the Series C Certificate of
Designations.
Section 7. Investor and Guarantor Representations. Each of the Investors and Guarantors
hereby, severally and not jointly, represents and warrants to the Company (as to itself only) as
follows:
(a) It is duly organized and validly existing under the laws of its jurisdiction of formation
and has full power and authority to execute and deliver this Agreement and to perform its
obligations hereunder, all of which have been duly authorized by all requisite corporate,
partnership or limited liability company action, as applicable. This Agreement has been duly
authorized, executed and delivered by it and constitutes its valid and binding agreement,
enforceable against it in accordance with its terms.
(b) No notice to, filing with, or authorization, registration, consent or approval of any
governmental authority or other person is necessary for the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated hereby or thereby by it.
(c) It is the legal owner of the shares of Series A Preferred Stock listed on Schedule
1 attached hereto as owned by it, free and clear of all Encumbrances except those created
pursuant to the Registration Rights Agreement and those imposed generally by applicable securities
laws. It has the absolute and unrestricted right, power and capacity to exchange the shares of
Series A Preferred Stock as contemplated hereby free and clear of any Encumbrances (except for
restrictions imposed generally by applicable securities laws).
(d) It has received from the Company all necessary information relating to the Company and its
business and has had a reasonable opportunity to ask questions of and receive answers from officers
and representatives of the Company concerning its financial condition and results of operations and
the transaction to which this Agreement relates, and any such questions have been answered to its
satisfaction. It has had the opportunity to review all publicly available records and filings and
all other documents concerning the Company that it considers necessary or appropriate to an
investment decision. It has conducted its own due diligence on the Company and the transaction to
which this Agreement relates and has made its own investment decisions based upon its own judgment,
due diligence and advice from such advisers as it has deemed necessary and not upon any view
expressed by or on behalf of the Company. It has consulted with its own legal, regulatory, tax,
business, investment, financial and accounting advisers in connection herewith to the extent it has
deemed necessary. Such Investor acknowledges that it can bear the economic risk and complete loss
of its investment in the shares of Series B Preferred Stock being acquired hereunder and has such
knowledge and experience in financial or business matters that it is capable of evaluating the
merits and risks of the investment contemplated hereby.
(e) It understands that the Company is in default of covenants on its senior debt and other
obligations, and is not able to pay all of its obligations as they become due. It acknowledges
that the Company has made no representation that the transaction contemplated by this Agreement
will lead to the satisfaction or waiver of all of the Company’s defaults, or that the Company will
be able to pay all of its obligations as they become due after the date of the transaction
contemplated by this Agreement.
(f) It is an “accredited investor” as such term is defined in Rule 501 of Regulation D
promulgated under the Act. It is acquiring the Warrants and shares of Series B Preferred Stock
hereunder for its own account for investment purposes only and not with a view to, or for the
resale in connection with, any “distribution” thereof in violation of the Act. It understands that
the Warrants, the shares of Series C Preferred Stock issuable thereunder and the shares of Series B
Preferred Stock issuable hereunder have not been registered under the Act in reliance upon a
specific exemption therefrom, which exemption depends upon, among other things, the bona fide
nature of the Investor’s investment intent as expressed herein. It further understands that such
securities may not be transferred unless subsequently registered under the Act and qualified under
any applicable state securities laws, or unless exemptions from registration and qualification are
otherwise available. It is aware of the provisions of Rule 144, promulgated under the Act.
Section 8. Conditions to Closing; Termination.
(a) The obligations of each of the Investors hereunder are subject to the fulfillment to such
Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which
may be waived by it (as to itself only):
(i) The representations and warranties made by the Company in Section 6 hereof shall be true
and correct in all material respects. The Company shall have performed in all material respects
all obligations and covenants herein required to be performed by it as of the Closing Date.
(ii) The Company shall have obtained any and all consents, permits, approvals, registrations
and waivers necessary or appropriate for consummation of the transactions contemplated by this
Agreement, including but not limited to the delisting of the Company’s Common Stock from The Nasdaq
Global Market exchange, all of which shall be in full force and effect.
(iii) The Certificate of Designations shall have been filed with the Secretary of State of
Delaware and shall have become effective.
(iv) The Company shall have delivered to each Investor one or more certificates representing
the shares of Series B Preferred Stock acquired by such Investor hereunder, registered in such
names as the Investor may have requested.
(v) The Company shall have delivered to each Guarantor one or more warrant certificates
representing the Warrant or Warrants acquired by such Guarantor hereunder, registered in such names
as the Guarantor may have requested.
(vi) The Company and the Lender shall have entered into an amendment to the Credit Agreement,
which, among other things, provides a waiver and forbearance of certain defaults under the Credit
Agreement, a consent to the transactions contemplated herein and for the establishment of the
Tranche, in form and substance reasonably acceptable to the Investors and the Lender shall
contemporaneously with the Closing disburse the balance of proceeds from
the Tranche, after deduction of certain amounts set forth in a settlement statement provided by
Lender and agreed to by the Company.
(vii) No judgment, writ, order, injunction, award or decree of or by any court, or judge,
justice or magistrate or any order of or by any governmental authority, shall have been issued, and
no action or proceeding shall have been instituted by any governmental authority, enjoining or
preventing the consummation of the transactions contemplated hereby.
(viii) The Company shall have satisfied its obligations under the letter agreement with the
Guarantors of even date herewith regarding the appointment of two additional directors to the Board
designated by the Guarantors.
(ix) The Company shall have caused its legal counsel to deliver to the Investors a legal
opinion in form and substance reasonably acceptable to the Investors with respect to the Series B
Preferred Stock, the Warrants and the Series C Preferred Stock.
(b) The obligations of the Company hereunder are subject to the fulfillment to the Company’s
satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be
waived by it:
(i) The representations and warranties made by the Investors and Guarantors in Section 7
hereof shall be true and correct in all material respects on the Closing Date. The Investors and
Guarantors shall have performed in all material respects all obligations and covenants herein
required to be performed by them as of the Closing Date.
(ii) The Investors shall have delivered to the Company the certificates representing the
shares of Series A Preferred Stock to be exchanged hereunder, in each case accompanied by such
executed stock powers or other transfer instruments reasonably requested by the Company.
(iii) The Guarantors shall have delivered to Lender, with a copy to the Company, an executed
copy of the form of Guaranty attached hereto as Exhibit C and shall have provided the
Deposit to the Lender in accordance with the Guaranty.
(iv) The Company shall have obtained the written consent of the holders of a majority of the
Series A Preferred Stock consenting to the issuance of the Series B Preferred Stock, the amendment
to the terms of the Series A Preferred Stock and the amendment to the Registration Rights
Agreement, as contemplated herein.
(v) The Company shall have received (1) an executed copy from Lender of an amendment to the
Credit Agreement, which, among other things, provides a waiver and forbearance of certain defaults
under the Credit Agreement, a consent to the transactions contemplated herein and for the
establishment of the Tranche and (2) a disbursement from Lender of the balance of proceeds from the
Tranche, after deduction of certain amounts set forth in a settlement statement provided by Lender
and agreed to by the Company.
(c) The obligations of the Company, on the one hand, and the Investors, on the other hand, to
effect the Closing shall terminate as follows:
(i) Upon the mutual written consent of the Company and the Investors;
(ii) By the Company if any of the conditions set forth in Section 8(b) shall have become
incapable of fulfillment, and shall not have been waived by the Company; or
(iii) By an Investor (with respect to itself only) if any of the conditions set forth in
Section 8(a) shall have become incapable of fulfillment, and shall not have been waived by the
Investor;
provided, however, that, except in the case of clause (i) above, the party seeking to terminate its
obligation to effect the Closing shall not then be in breach of any of its representations,
warranties, covenants or agreements contained in this Agreement or the other documents contemplated
hereby if such breach has resulted in the circumstances giving rise to such party’s seeking to
terminate its obligation to effect the Closing.
(d) In the event of termination by the Company or any Investor of its obligations to effect
the Closing pursuant to this Section 8, written notice thereof shall forthwith be given to the
other Investors and the other Investors shall have the right to terminate their obligations to
effect the Closing upon written notice to the Company and the other Investors.
Section 9. Closing. The closing of this Agreement (the “Closing”) shall take place at the
offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 X Xxxxxx, XX, Xxxxxxxxxx XX 00000, after the
conditions to Closing set forth herein have been satisfied or waived, to the extent permitted by
applicable law or at such other location and on such other date as the Company and the Investors
shall mutually agree (the “Closing Date”). As used herein, “Business Day” means a day, other than
a Saturday, Sunday or legal holiday, on which commercial banks in New York City are open for the
general transaction of business.
Section 10. Further Assurances. Subject to the terms and conditions herein provided, each of
the parties hereto shall take, or cause to be taken, all action, and to do, or cause to be done,
all things reasonably necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement. In the event that
at any time hereafter any further action is necessary to carry out the purposes of this Agreement,
the parties hereto shall take all such action without any further consideration therefor.
Section 11. Successors and Assigns. This Agreement may not be assigned by a party hereto
without the prior written consent of the other parties hereto. The provisions of this Agreement
shall inure to the benefit of and be binding upon the respective permitted successors and assigns
of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
Section 12. Counterparts; Faxes; Titles and Subtitles. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. This Agreement may also be executed via facsimile, which
shall be deemed an original. The titles and subtitles used in this Agreement are used for
convenience only and are not to be considered in construing or interpreting this Agreement.
Section 13 Notices. Unless otherwise provided, any notice required or permitted under this
Agreement shall be given in writing and shall be deemed effectively given as hereinafter described
(i) if given by personal delivery, then such notice shall be deemed given upon such delivery, (ii)
if given by telex or telecopier, then such notice shall be deemed given upon receipt of
confirmation of complete transmittal, (iii) if given by mail, then such notice shall be deemed
given upon receipt and (iv) if given by an internationally recognized overnight air courier, then
such notice shall be deemed given one Business Day after delivery to such carrier. All notices
shall be addressed to the party to be notified at the address as follows, or at such other address
as such party may designate by written notice to the other party:
If to the Company:
LCC International, Inc.
0000 Xxxx Xxxx Xxxxx, Xxxxx 000-X
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
0000 Xxxx Xxxx Xxxxx, Xxxxx 000-X
Xxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
0000 X Xxxxxx XX
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Investors or the Guarantors to the addresses set forth on Schedule 1
attached hereto.
Section 14. Expenses. The parties hereto shall pay their own costs and expenses in
connection herewith except that the Company shall pay the reasonable attorneys’ fees and expenses
of the Investors. Such expenses shall be paid not later than the Closing.
Section 15. Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the written consent of
the Company and the Investors.
Section 16. Publicity. No public release or announcement concerning the transactions
contemplated hereby shall be issued by the Company or the Investors without the prior consent of
the Company (in the case of a release or announcement by the Investors) or the Investors (in the
case of a release or announcement by the Company) (which consents shall not be unreasonably
withheld), except that the Company may issue a press release describing the terms of this
Agreement. Notwithstanding the foregoing, the Investors acknowledge that the Company shall be
permitted to file a Current Report on Form 8-K to report the transactions contemplated by the
Agreement if the Company determines that such filing is necessary or advisable to comply with its
reporting obligations under applicable securities laws.
Section 17. Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof but shall
be interpreted as if it were written so as to be enforceable to the maximum extent permitted by
applicable law, and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law which renders any
provision hereof prohibited or unenforceable in any respect.
Section 18. Entire Agreement. This Agreement, including the Exhibits, constitutes the entire
agreement among the parties hereof with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings, both oral and written, between the parties with
respect to the subject matter hereof and thereof.
Section 19. Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement
shall be governed by, and construed in accordance with, the internal laws of the State of New York
without regard 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 located in New York
County 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 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. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED
SPECIFICALLY AS TO THIS WAIVER.
Section 20. No Strict Construction. Each of the parties hereto acknowledge that this
Agreement has been prepared jointly by the parties hereto, and shall not be construed against any
party.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
| LCC INTERNATIONAL, INC. |
||||
| By: | /s/ Xxxxx Xxxxxxxx, Xx. | |||
| Name: | Xxxxx Xxxxxxxx, Xx. | |||
| Title: | Executive Vice President and Chief Financial Officer | |||
| INVESTORS: |
||||
| /s/ Xxxxx X. Xxxxxx, III | ||||
| Xxxxx X. Xxxxxx, III | ||||
| MILFAM II, L.P. |
||||
| By: Milfam LLC, its General Partner | ||||
| By: | /s/ Xxxxx X. Xxxxxx, III | |||
| Name: | Xxxxx X. Xxxxxx, III | |||
| Title: | Manager | |||
| TRUST A-4 — XXXXX X. XXXXXX |
||||
| By: PNC Bank, National Association, as Trustee | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx, III | |||
| Title: | Investment Advisor | |||
| XXXXX INVESTMENT PARTNERS MASTER FUND, L.P. |
||||
| By: Xxxxx Investment Management LLC, its General Partner |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Managing Member | |||
Signature Page to Exchange Agreement
| GUARANTORS: MILFAM GUARANTOR, LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxx, III | |||
| Name: | Xxxxx X. Xxxxxx, III | |||
| Title: | President | |||
| BR INVESTCO, LLC |
||||
| By: | /s/ Xxxxxx Xxxxx | |||
| Name: | Xxxxxx Xxxxx | |||
| Title: | Manager | |||
Signature Page to Exchange Agreement
Schedule 1
| Number of | Number of | |||||||||||
| shares of | shares of | |||||||||||
| Series A | Series B | |||||||||||
| Preferred | Preferred | Number of | ||||||||||
| Investor / Guarantor | Stock | Stock | Warrant Shares | |||||||||
Xxxxx X. Xxxxxx, III 0000 Xxxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 |
447,761.25 | 447,761.25 | 0 | |||||||||
Milfam II, L.P. 0000 Xxxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 |
447,761.25 | 447,761.25 | 0 | |||||||||
Trust A-4 — Xxxxx
X. Xxxxxx 0000 Xxxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 |
447,761.25 | 447,761.25 | 0 | |||||||||
Xxxxx Investment Partners Master Fund, L.P. 00000 Xxxxx Xxxxxx Xxxx., Xxxxx 000 Xxx Xxxxxxx, Xxxxxxxxxx 00000 |
1,287,882.00 | 1,287,882.00 | 0 | |||||||||
Xxxxx Investment Partners Master Fund, L.P. 00000 Xxxxx Xxxxxx Xxxx., Xxxxx 000 Xxx Xxxxxxx, Xxxxxxxxxx 00000 |
83,954.25 | 83,954.25 | 0 | |||||||||
Milfam Guarantor,
LLC 0000 Xxxxxx Xxxxx Xxxxxx, Xxxxxxx 00000 |
0 | 0 | 66,890.901 | |||||||||
BR Investco, LLC 00000 Xxxxx Xxxxxx Xxxx., Xxxxx 000 Xxx Xxxxxxx, Xxxxxxxxxx 00000 |
0 | 0 | 66,890.901 | |||||||||
Exhibit A
Amended and Restated Series A Certificate of Designations
Exhibit B
Series B Certificate of Designations
Exhibit C
Series C Certificate of Designations
Exhibit D
Form of Warrant
