AGREEMENT
AGREEMENT, dated as of April 25, 2000, among TII Industries, Inc., a
Delaware corporation (the "Company"), and FBO Xxxxxx Xxxxxx XXX Rollover (the
"Assignee").
WHEREAS, the Company is a party to a Finance Agreement, dated as of June
26, 1991 (as amended from time to time, the "Finance Agreement"), with Overseas
Private Investment Corporation ("OPIC") pursuant to which, among other things,
OPIC made a $750,000 Convertible Loan (the "Convertible Loan") to the Company,
which is presently convertible into common stock of the Company at a conversion
price of $2.50 per share; and
WHEREAS, OPIC desires to sell the Finance Agreement, related Promissory
Note (the "Note") and the Option dated July 18, 1991 granted by the Company to
OPIC to purchase shares of the Company's common stock (the "Option"); and
WHEREAS, the Assignee is willing to purchase such instruments on the
condition that the Company agree to (a) reduce the conversion price of the
Convertible Loan to $2.00 per share for the Assignee and (b) waive its right to
repurchase the shares issuable upon conversion of the Conversion Loan (the
"Conversion Shares"); (c) consent to the assignment of the Option (which is
assignable by OPIC only with the consent of the Company) to Assignee; and (d)
extend the Expiration Date of the Option by two years;
WHEREAS, the Company is willing to so agree provided that the Assignee (a)
immediately convert the Convertible Loan and (b) terminates the Finance
Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
1. Subject to the assignment of the Finance Agreement, the Note and the
Option by OPIC to Assignee occurring on or prior to April 30, 2000;
(a) the conversion price of the Convertible Loan is reduced so that
the conversion price in effect on the date of conversion is $2.00 per share;
(b) Assignee fully converts the Convertible Loan into an aggregate
of 375,000 shares of the Company's common stock, and promptly following receipt
by the Company of the Note and Finance Agreement, as contemplated in clause (c)
below, the Company shall cause to be issued to Assignee stock certificates
evidencing such shares, free from restrictive legend or stop transfer
instructions;
(c) Assignee will deliver the Note and Finance Agreement to the
Company on or prior to May 3, 2000 (together with an executed copy of the
assignment instrument in the form annexed hereto from OPIC to Assignee);
(d) the Finance Agreement is terminated;
(e) the Company consents to the transfer and assignment of the
Option to Assignee;
(f) all references in the Option are to the Assignee in lieu of
OPIC;
(g) The Expiration Date of the Option shall be extended from July
18, 2001 to July 18, 2003, or if said date shall in the State of New York be a
holiday or a day on which banks are authorized to close, then the following day
which in the State of New York is not a holiday or day on which banks are
authorized to close; and
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(h) all notices to Assignee under the Option shall be to it at the
following address: FBO Xxxxxx Xxxxxx XXX Rollover, Xxxxxxxxx Xxxxxx LLC
Custodian, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
2. The Company and Assignee acknowledge that, after giving effect to the 1
for 2-1/2 reverse split previously effectuated by the Company, the Option
currently entitles the holder thereof to purchase up to an aggregate of 100,000
shares of the Company's common stock at a current exercise price of $2.50 per
share.
3. The Company represents and warrants to the Assignee that the Conversion
Shares will be validly issued, fully paid and non-assessable and, may be sold by
Assignee without the requirement to be registered under the Securities Act of
1933, as amended (the "Act"), in reliance upon the exemption from the
registration provisions of the Act provided by Section 4(1) thereof by reason of
paragraph (k) of Rule 144 promulgated under the Act.
4. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. No amendment,
modification or waiver of any provision of this Agreement shall be effective
unless the same shall be in writing and signed by the party to be charged and
then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their successors and assigns.
The provisions of this Agreement are severable, and if any provision shall be
held invalid or unenforceable in whole or in part in
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any jurisdiction, then such invalidity or unenforceability shall not in any
manner affect such provision in any other jurisdiction or any other provision of
this Agreement in any jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their duly authorized offices as of the date first
above written.
TII INDUSTRIES, INC.
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: VP Finance
FBO XXXXXX XXXXXX XXX ROLLOVER
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title:
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