SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE l3D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
LOGIMETRICS, INC.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
541410106
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(CUSIP Number)
with a copy to:
Charles S. Brand John D. Hogoboom
c/o mmTech, Inc. LOWENSTEIN SANDLER PC
20 Meridian Road 65 Livingston Avenue
Eatontown, New Jersey 07724 Roseland, New Jersey 07068
(908) 935-7150 (973) 597-2500
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(Name, Address and Telephone Number
of Person Authorized to Receive
Notices and Communications)
October 21, 1998
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(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), (f) or (g), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule l3d-7(b) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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<PAGE>
CUSIP NO. 541410106
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1) Names of Reporting Persons I.R.S. Identification Nos. of Above Persons
(entities only):
Charles S. Brand
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2) Check the Appropriate Box if a Member of a Group (See Instructions):
(a) ___ (b) ___
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3) SEC Use Only
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4) Source of Funds (See Instructions):PF, OO
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e): Not Applicable
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6) Citizenship or Place of Organization: United States
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Number of 7) Sole Voting Power: 17,381,133*
Shares Beneficially 8) Shared Voting Power: 0
Owned by
Each Reporting 9) Sole Dispositive Power: 17,381,133*
Person With: 10) Shared Dispositive Power: 0
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11) Aggregate Amount Beneficially Owned by Each Reporting Person:
17,381,133*
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12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions):
Not Applicable
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13) Percent of Class Represented by Amount in Row (11):
61.0%*
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14) Type of Reporting Person (See Instructions): IN
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* Includes an aggregate of 13,333 shares of Common Stock issuable to Mr. Brand
upon the exercise or conversion of securities exercisable for or convertible
into shares of Common Stock within 60 days of October 21, 1998.
<PAGE>
Item 1. Security and Issuer.
This Statement on Schedule 13D (the "Schedule 13D") relates to the
Common Stock, par value $.01 per share (the "Common Stock"), of LogiMetrics,
Inc., a Delaware corporation (the "Company"), and is being filed pursuant to
Rule 13d-1 under the Securities Exchange Act of 1934, as amended (the "Act").
The principal executive offices of the Company are located at 50 Orville Drive,
Bohemia, New York 11716.
Item 4. Purpose of the Transaction.
Pursuant to the terms of an Agreement and Plan of Merger, dated as of
December 18, 1996 (as amended, the "Merger Agreement"), among the Company,
mm-Tech Acquisition Corp. ("Merger Sub"), mmTech and Mr. Brand, on April 25,
1997 the Company acquired mmTech by merging Merger Sub with and into mmTech (the
"Merger"). Under the terms of the Merger Agreement, each outstanding share of
mmTech Common Stock was converted pursuant to the Merger into 192,478 shares of
Common Stock, resulting in the issuance of 19,247,800 shares. The Merger is
intended to be tax free and to qualify as a "pooling of interests" for
accounting purposes.
Upon consummation of the Merger, Mr. Brand, the founder and sole
shareholder of mmTech, became the Chairman and Chief Executive Officer of the
Company. Norman M. Phipps, the Chairman and Acting President of the Company,
became the President and Chief Operating Officer of the Company. In addition,
pursuant to the Merger, the Company's Board of Directors was reconstituted to
consist of Mr. Brand, Mr. Phipps, Alfred Mendelsohn, Frank Brand and
Jean-Francois Carreras.
Pursuant to the terms of a Stock Purchase Agreement, dated October 21,
1998 (the "Stock Purchase Agreement"), Mr. Brand sold 2,000,000 shares of Common
Stock to a group of institutional investors (the "Investors") for a cash
purchase price of $500,000, or $0.25 per share. The sale was made as a condition
to the transactions contemplated by a Purchase Agreement, dated October 21, 1998
(the "Purchase Agreement"), among the Company and the purchasers party thereto
(including the Investors). Pursuant to the Purchase Agreement, the Company
issued and sold approximately $2.7 million in aggregate face amount of its Class
C 13% Senior Subordinated Debentures due September 30, 1999 (the "Debentures")
for an aggregate purchase price of $2.0 million. As required by the Investors,
Mr. Brand used the proceeds of the sale of Common Stock pursuant to the Stock
Purchase Agreement to acquire approximately $667,000 in face amount of the
Debentures pursuant to the Purchase Agreement for a cash purchase price of
$500,000. The Debentures are convertible upon the earlier of January 31, 1999
and the occurrence of certain events into shares of Common Stock at varying
conversion prices set forth in the Debentures.
Pursuant to the terms of a Registration Rights Agreement, dated
October 21, 1998 (the "Registration Rights Agreement"), the purchasers of the
Debentures, including Mr. Brand, have certain registration rights with respect
to the shares of Common Stock issuable upon conversion of the Debentures.
Mr. Brand has no current plans to acquire beneficial ownership of
additional shares of Common Stock, other than pursuant to the grant of stock
options or other awards by the Company. However, depending upon the Company's
business and prospects, future developments, market conditions and other
factors, Mr. Brand may, from time to time, purchase additional shares of Common
Stock or dispose of all or a portion of the shares of Common Stock beneficially
owned by him, either in the open market or in privately negotiated transactions.
Except as described above, Mr. Brand has no plans or proposals of the
type set forth in paragraphs (a) through (j) of Item 4 of Schedule 13D.
A copy of the Merger Agreement was filed as an Exhibit to Mr. Brand's
Schedule 13D as originally filed on May 9, 1997 and is incorporated herein by
reference. The description of the Merger Agreement set forth above is a summary
only, is not intended to be complete, and is qualified in its entirety by
reference to the complete text of such documents filed herewith. Copies of the
Stock Purchase Agreement, the Purchase Agreement and the Registration Rights
Agreement are being filed as Exhibits to this Schedule 13D, Amendment 1 and are
incorporated herein by reference. The description of such documents set forth
above is a summary only, is not intended to be complete, and is qualified in its
entirety by reference to the complete text of such documents filed herewith.
Item 5. Interest in Securities of the Issuer.
As of October 21, 1998, there were 28,470,430 shares of Common Stock
issued and outstanding. As of that date, Mr. Brand beneficially owned 17,381,133
of such shares, or 61.0% of the total outstanding (including shares issuable to
Mr. Brand upon the exercise or conversion of securities exercisable for or
convertible into shares of Common Stock within 60 days of October 21, 1998). Mr.
Brand possesses sole voting and dispositive power with respect to all of such
shares. Because the Debentures are not presently convertible within 60 days of
the date hereof, the shares of Common Stock beneficially owned by Mr. Brand as
reported pursuant to this Schedule 13D do not
<PAGE>
include any shares of Common Stock issuable upon conversion of the Debentures.
Except as described in Item 4 above, Mr. Brand has not effected any transactions
in the Common Stock during the past 60 days.
No other person is known to Mr. Brand to have the right to receive or
power to direct dividends from, or proceeds from the sale of, shares of Common
Stock beneficially owned by Mr. Brand.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer.
In July 1997, the Company entered into a Purchase Agreement (the "1997
Purchase Agreement") with a group of institutional investors (the "Purchasers").
Pursuant to the terms of the 1997 Purchase Agreement, the Company issued and
sold to the Purchasers certain securities for an aggregate purchase price of
$4,352,500.
In connection with the transactions contemplated by the 1997 Purchase
Agreement, the Purchasers, the Company and Mr. Brand entered into a Stockholders
Agreement (the "Stockholders Agreement") pursuant to which, among other things,
Mr. Brand agreed to certain restrictions on his ability to sell his shares of
Common Stock. Pursuant to the terms of the Stockholders Agreement, the size of
the Board of Directors was to be increased to eight members and the Purchasers
received the right to appoint four directors. At either the request of Mr. Brand
or the Purchasers, the size of the Board may be further increased by one and Mr.
Brand and the Purchasers will have the right to mutually select an independent
director to fill the resulting vacancy. Further, in the event that Cerberus
Partners, L.P. (or any subsequent holder of the Company's Amended and Restated
Class B 13% Senior Subordinated Convertible Pay-in-Kind Debentures due July 29,
1999) (the "Class B Debentures") exercises its right to designate a member of
the Board of Directors, the number of directors will be increased by two, the
holder of the Class B Debentures will have the right to appoint one director and
Mr. Brand and the Purchasers will have the right to appoint an additional
independent director.
Pursuant to the terms of the Stockholders Agreement, Mr. Brand has
appointed himself, Dr. Frank A. Brand, Jean-Francois Carreras and Norman M.
Phipps and the Purchasers have appointed Mark B. Fisher, Francisco A. Garcia and
Kenneth C. Thompson as directors of the Company.
Under the terms of the Stockholders Agreement, the parties agreed to
cause (i) the Executive Committee of the Board of Directors to be comprised of
two directors designated by Mr. Brand and one director designated by the
Purchasers, (ii) the Audit Committee of the Board of Directors to be comprised
of two directors designated by Mr. Brand and two directors designated by the
Purchasers, and (iii) the Compensation Committee of the Board of Directors to be
comprised of two directors designated by Mr. Brand and two directors designated
by the Purchasers. The Purchasers also have the right to designate a second
director to serve on the Executive Committee of the Board of Directors.
Effective in March 1998, Kenneth C. Thompson became the Chief
Executive Officer of the Company. Under the terms of the Stockholders Agreement,
Mr. Thompson is treated as a director designated by Mr. Brand and is entitled to
serve as a member of the Executive Committee of the Board of Directors.
Under the terms of the Stockholders Agreement, the holders of a
majority of the shares of Common Stock beneficially owned by the Purchasers have
the right, subject to certain limitations, to cause the Company to enter into a
"Company Sale". A Company Sale is defined to include (i) a sale of all or
substantially all of the assets of the Company (other than to certain
affiliates), (ii) a merger, consolidation, share exchange or other similar
transaction in which the holders of the Company's voting stock receive less than
50% of the voting power of the surviving entity, (iii) a sale, disposition or
issuance of shares of voting stock of the Company in which a person or entity
(other than a party to the Stockholder Agreement or its affiliates) acquires 50%
or more of the total voting power of the Company, and (iv) the formation of
certain partnerships, joint ventures and other strategic alliances involving the
sale or transfer of all or substantially all of the assets of the Company to a
third party.
The Stockholders Agreement terminates upon the earliest to occur of
(i) the written consent of the holders of a majority of the shares of Common
Stock beneficially owned by the Purchasers and the holders of a majority of the
shares of Common Stock then beneficially owned by Mr. Brand and certain
transferees, (ii) Mr. Brand and certain transferees, as a group, or the
Purchasers, as a group, becoming the beneficial owners of less than 10% of the
outstanding Common Stock (determined on a fully-diluted basis), or (iii) upon
the consummation of a Company Sale in accordance with the terms of the
Stockholders Agreement.
A copy of the Stockholders Agreement is being filed as an Exhibit to
this Schedule 13D, and is incorporated herein by reference. The description of
the Stockholders Agreement set forth above is a summary only, is not intended to
be complete, and is qualified in its entirety by reference to the complete text
of the Stockholders Agreement filed herewith.
Item 7. Material to be Filed as Exhibits.
Exhibit 1 Agreement and Plan of Merger, dated as of December 18, 1996 (the
"Merger Agreement"), among LogiMetrics, Inc., mm-Tech Acquisition
Corp., mmTech, Inc. and Charles S. Brand (previously filed as
Exhibit 2.1 to the Company's Current Report on Form 8-K dated
December 18, 1996 and incorporated herein by reference).
Exhibit 2 Amendment to Merger Agreement (previously filed as Exhibit 2 to
the original Schedule 13D of Mr. Brand as filed on May 9, 1997
and incorporated herein by reference).
Exhibit 3 Stock Purchase Agreement, dated October 21, 1998, among
LogiMetrics, Inc., Charles S. Brand and the other parties named
therein.
Exhibit 4 Purchase Agreement, dated October 21, 1998, among LogiMetrics,
Inc., Charles S. Brand and the other parties named therein.
Exhibit 5 Registration Rights Agreement, dated October 21, 1998, among
LogiMetrics, Inc., Charles S. Brand and the other parties named
therein.
Exhibit 6 Stockholders Agreement, dated July 29, 1997, among LogiMetrics,
Inc., Charles S. Brand and the other parties named therein.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned hereby certify that the information set
forth in this statement is true, complete and correct.
December 1, 1998
/s/Charles S. Brand
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Charles S. Brand
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE FEDERAL
CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated October 21, 1998, among Charles S. Brand
(the "Seller") and the purchasers listed on the signature pages hereto
(collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS, the Seller is the legal and beneficial owner of 19,367,800 of the
issued and outstanding common stock, par value $.01 per share (the "Common
Stock"), of LogiMetrics, Inc. (the "Company"); and
WHEREAS, the Seller desires to sell and transfer to the Purchasers, and the
Purchasers desire to purchase from the Seller, 2,000,000 shares of Common Stock
(the "Brand Shares"), all as more specifically provided herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound, the parties hereto agree as follows:
ARTICLE I
Purchase and Sale of Brand Shares
Section 1.1. Purchase and Sale of Brand Shares. Upon the terms and subject
to the conditions of this Agreement and on the basis of the representations,
warranties and agreements contained herein, the Seller hereby sells, assigns,
transfers, conveys and delivers to the Purchasers the Brand Shares for a cash
purchase price of $0.25 per share or an aggregate of $500,000 (the "Purchase
Price"). The number of Brand Shares being purchased by each Purchaser and the
aggregate Purchase Price allocable to each Purchaser is set forth on Exhibit A
attached hereto. The Purchase Price shall be payable in cash by wire transfer to
an account or accounts specified in writing by the Seller simultaneously with
the delivery to the Purchasers of the Brand Shares, in proper form for transfer
or otherwise accompanied by blank stock powers executed by the Seller (with
signature guaranteed).
ARTICLE II
Representations and Warranties Regarding the Seller
The Seller hereby represents and warrants to the Purchasers as follows:
Section 2.1. Authorization. The Seller has the capacity to execute and
deliver this Agreement and to perform his obligations hereunder. The Seller is
under no impairment or other disability, legal, physical, mental or otherwise,
that would preclude or limit the ability of such Seller to perform his
obligations hereunder. This Agreement constitutes a valid and binding obligation
of the Seller, enforceable against such Seller in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Section 2.2. Non-contravention. Neither the execution and delivery of this
Agreement nor the performance by the Seller of his obligations hereunder will
(i) violate or result in a breach (with or without the lapse of time, the giving
of notice or both) of or constitute a default under (A) any contract, agreement,
commitment, indenture, mortgage, lease, pledge, note, license, permit or other
instrument or obligation, other than Section 2.3 of the Stockholders Agreement,
dated as of July 29, 1997 (the "Stockholders Agreement"), among the Seller, the
Company and the other parties thereto, or (B) any judgment, order, decree, law,
rule or regulation or other restriction of any national, federal, state,
provincial, county, municipal or local government, foreign or domestic, or the
government of any political subdivision of any of the foregoing, or any entity,
authority, agency, ministry or other similar body exercising executive,
legislative, judicial, regulatory or administrative authority or functions of or
pertaining to government, including any authority or other quasi-governmental
entity established to perform any of such functions (each, a "Governmental
Authority"), in each case to which the Seller is a party or by which the Seller
is bound or to which any of his assets or properties are subject, or (ii) result
in the creation or imposition of any lien, claim, charge, mortgage, pledge,
security interest, equity, restriction or other encumbrance (collectively,
"Encumbrances") on the Brand Shares.
Section 2.3. No Consents. Except for compliance with the provisions of
Section 2.3 of the Stockholders Agreement, no notice to, filing with, or
authorization, registration, consent or approval of any Governmental Authority
or other individual, partnership, corporation, joint stock company,
unincorporated organization or association, trust or joint venture, or a
governmental agency or political subdivision thereof (each, a "Person") is
necessary for the execution, delivery or performance of this Agreement or the
consummation of the transactions contemplated hereby by the Seller. The approval
set forth in Section 5.1 hereof is sufficient to authorize the sale of the Brand
Shares pursuant to the provisions of the Stockholders Agreement.
Section 2.4. Ownership of the Shares. The Seller owns the Brand Shares
beneficially and of record, free and clear of any Encumbrances, other than
Encumbrances created pursuant to the terms of the Stockholders Agreement and
those arising under applicable federal and state securities laws. Except for the
Stockholders Agreement, there are no voting trust arrangements, shareholder
agreements or other agreements (i) granting any option, warrant or right of
first refusal with respect to the Brand Shares to any Person, (ii) restricting
the right of the Seller to sell the Brand Shares to the Purchasers, or (iii)
restricting any other right of the Seller with respect to the Brand Shares.
Subject to compliance with Section 2.3 of the Stockholders Agreement, the Seller
has the absolute and unrestricted right, power and capacity to sell, assign and
transfer the Brand Shares to the Purchasers free and clear of any Encumbrances
(except for Encumbrances created pursuant to the Stockholders Agreement and
those arising under applicable federal and state securities laws). Upon delivery
to the Purchasers of the certificates representing the Brand Shares in exchange
for the Purchase Price, the Purchasers will acquire good, valid and marketable
title to the Brand Shares, free and clear of any Encumbrances created by the
Seller.
Section 2.5. Brokers. No Person is or will be entitled to a broker's,
finder's, investment banker's, financial adviser's or similar fee from the
Seller in connection with this Agreement or any of the transactions contemplated
hereby.
ARTICLE III
Representations and Warranties Regarding the Purchasers
The Purchasers hereby, severally and not jointly, represent and warrant to
the Seller as follows:
Section 3.1. Organization. Each Purchaser that is not an individual is
either a corporation, limited liability company, general partnership or limited
partnership, duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization.
Section 3.2. Authorization. Each Purchaser that is not an individual has
the power and authority (corporate, limited liability company, partnership and
other) to execute and deliver this Agreement and to perform its obligations
hereunder, all of which have been duly authorized by all requisite corporate,
limited liability company or partnership action. Each Purchaser that is an
individual has the capacity to execute and deliver this Agreement and to perform
his or her obligations hereunder. Each such individual Purchaser is under no
impairment or other disability, legal, physical, mental or otherwise, that would
preclude or limit the ability of such Purchaser to perform his or her
obligations under this Agreement. This Agreement has been duly authorized,
executed and delivered by each Purchaser and constitutes a valid and binding
agreement of such Purchaser, enforceable against such Purchaser in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
Section 3.3. Access to Information. The Purchasers have received all
information regarding the Company that they deemed necessary or advisable to
evaluate the risks and merits of an investment in the Brand Shares. In addition,
the Purchasers and their respective purchaser representatives, if any, have had
an opportunity to ask questions of and receive answers from the Seller and
representatives of the Company concerning the business of the Company, its
condition and prospects (financial and other) and the terms and conditions of
the offering of the Brand Shares.
Section 3.4. Accredited Investor. Each Purchaser 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. No Purchaser was formed for
the purpose of investing in the Brand Shares.
Section 3.5. Investment Intent. (a) Each Purchaser is acquiring the Brand
Shares to be purchased for it for its own account for investment only and not
for or with a view to resale or distribution (except for the disposition by
certain of the Purchasers of up to 200,000 of the Brand Shares to certain
executive officers and directors of the Company). Except as described in the
prior sentence, no Purchaser has entered into any contract, undertaking,
agreement or arrangement with any person to sell, transfer or pledge to such
person or anyone else the Brand Shares and no Purchaser has any present plans or
intentions to enter into any such contract, undertaking, agreement or
arrangement.
(b) Each Purchaser has the financial ability to bear the economic risk
of losing its entire investment in the Brand 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.
(c) The overall commitment of each Purchaser to investments which are
not readily marketable is not disproportionate to its net worth, and an
investment in the Brand Shares will not cause such overall commitment to become
excessive. Each Purchaser's need for diversification in its investment portfolio
will not be impaired by an investment in the Brand Shares.
(d) Each Purchaser has adequate means of satisfying its short term
needs for cash and has no present need for liquidity which would require it to
sell its Brand Shares or any interest therein.
(e) Each Purchaser has substantial experience in making investment
decisions of this type and/or is relying on its own advisors in making this
investment decision and, therefore, either alone or together with its advisors,
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of an investment in the Brand Shares.
(f) Each Purchaser understands that the Brand Shares constitute
restricted securities within the meaning of Rule 144 promulgated under the
Securities Act, and that none of the Brand Shares, or any interest therein, may
be sold 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.
(g) Each Purchaser has considered and, to the extent such Purchaser
believed such discussion was necessary, discussed with its professional legal,
tax and financial advisers the suitability of an investment in the Brand Shares
for such Purchaser's particular tax and financial situation and each Purchaser
has determined that the Brand Shares are a suitable investment for it.
(h) EACH PURCHASER UNDERSTANDS THAT AN INVESTMENT IN THE BRAND SHARES
BEING PURCHASED BY IT INVOLVES A HIGH DEGREE OF RISK, INCLUDING WITHOUT
LIMITATION, RISKS RELATING TO THE COMPANY'S HISTORY OF LOSSES, RISKS RELATING TO
THE RECENT CHANGE IN THE COMPANY'S BUSINESS FOCUS, RISKS RELATING TO THE
COMPANY'S DEPENDENCE UPON THE DEVELOPMENT OF NEW MARKETS OF UNCERTAIN SIZE AND
GROWTH PROSPECTS, THE COMPANY'S DEFAULTS UNDER SUBSTANTIALLY ALL OF ITS
INDEBTEDNESS AND OUTSTANDING PREFERRED STOCK, THE COMPANY'S CONTINUING NEED FOR
ADDITIONAL CAPITAL, THE COMPANY'S NEED FOR LIQUIDITY, THE EFFECTS OF
COMPETITION, THE COMPANY'S RELIANCE ON KEY PERSONNEL, THE COMPANY'S DEPENDENCE
ON TECHNOLOGY AND TECHNOLOGICAL INNOVATION, THE EFFECTS OF GOVERNMENT REGULATION
OF THE TELECOMMUNICATIONS INDUSTRY, THE RESTRICTIONS ON TRANSFER OF THE
SECURITIES, THE SUBORDINATION PROVISIONS OF THE DEBENTURES, POTENTIAL CONFLICTS
OF INTEREST AND RELATED PARTY TRANSACTIONS INVOLVING THE COMPANY AND THE
DIRECTORS AND OFFICERS OF THE COMPANY, AND RISKS RELATING TO THE SUCCESSFUL
EXECUTION OF THE COMPANY'S BUSINESS AND OPERATING STRATEGY.
Section 3.6. Financial Resources. Each Purchaser has cash or credit
facilities presently available to meet all of its payment obligations hereunder.
Section 3.7. Brokers. No person is or will be entitled to a broker's,
finder's, investment banker's, financial adviser's or similar fee from any
Purchaser in connection with this Agreement or any of the transactions
contemplated hereby.
ARTICLE IV
Survival, Amendment and Waiver
Section 4.1. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement or any certificate
delivered in connection herewith shall survive the sale of the Brand Shares as
contemplated hereby, and shall apply with respect to claims asserted in writing
within one year thereof. The provisions of this Section 4.1 shall not limit any
covenant or agreement of the parties hereto which, by its terms, contemplates
performance after the sale of the Brand Shares.
Section 4.2. Amendments. This Agreement (including the provisions of this
Section 4.2) may not be amended or modified except by an instrument in writing
signed on behalf of all of the parties affected by such amendment or
modification.
Section 4.3. Extension; Waiver. The parties hereto may (i) extend the time
for performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto, and (iii) waive compliance with any of the agreements 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 its rights hereunder shall not constitute a waiver of such rights.
ARTICLE V
Miscellaneous
Section 5.1. Approval of Sale. Each Purchaser who is a party to the
Stockholders Agreement hereby irrevocably approves, pursuant to Section 2.3 of
the Stockholders Agreement, the sale of the Brand Shares as contemplated hereby.
Such Purchasers constitute the Majority Holders (as such term is defined in the
Stockholders Agreement).
Section 5.2. Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, when delivered by courier, three days
after being deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested), or when received by facsimile transmission
upon receipt of a confirmed transmission report, as follows:
If to the Seller: c/o LogiMetrics, Inc.
50 Orville Drive
Bohemia, New York 11716
Tel: (516) 784-4110
Fax: (516) 784-4132
and if to the other parties at the address or facsimile transmission number
specified below its name on the signature pages hereto (or, in the case of
Persons who become parties hereto subsequently, at their last addresses or
facsimile transmission numbers shown on the record books of the Company). Any
party hereto, by notice given to the other parties hereto in accordance with
this Section 5.2 may change the address or facsimile transmission number to
which such notice or other communications are to be sent to such party.
Section 5.3. Expenses. Each of the parties hereto shall pay its own
expenses incident to this Agreement and the transactions contemplated herein.
Section 5.4. 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 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.
Section 5.5. Assignment; Successors and Assigns; No Third Party Rights.
This Agreement may not be assigned by operation of law or otherwise, and any
attempted assignment shall be null and void. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective heirs,
successors, permitted assigns and legal representatives. This Agreement shall be
for the sole benefit of the parties to this Agreement and their respective
heirs, 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 heirs, successors, assigns and legal
representatives, any legal or equitable right, remedy or claim hereunder.
Section 5.6. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original agreement, but all of which together
shall constitute one and the same instrument.
Section 5.7. 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 5.8. Entire Agreement. This Agreement constitute the entire
agreement among the parties with respect to the matters covered hereby and
thereby and supersede all previous written, oral or implied understandings among
them with respect to such matters.
Section 5.9. 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 5.10. Interpretation. Unless otherwise indicated to the contrary
herein by the context or use thereof: (i) the words, "herein," "hereto,"
"hereof" and words of similar import refer to this Agreement as a whole and not
to any particular Section or paragraph hereof; (ii) words importing the
masculine gender shall also include the feminine and neutral genders, and vice
versa; and (iii) words importing the singular shall also include the plural, and
vice versa.
Section 5.11. No Strict Construction. Each of the parties hereto
acknowledge that this Agreement has been prepared jointly by the parties hereto,
and shall not be strictly construed against either party.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
/s/Charls S. Brand
_____________________________
Charles S. Brand
20 Meridian Way
Eatontown, New Jersey 07724
Tel: (732) 935-7150
Fax: (732) 935-7151
/s/Steven Dinetz
___________________________________
Steven Dinetz
1034 Skyland Drive
Zephyr Cove, Nevada 89448
Tel: (702) 588-0343
(702) 588-1433
/s/Gerald B. Cramer
___________________________________
Gerald B. Cramer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
/s/Edward J. Rosenthal
_________________________________
Edward J. Rosenthal, Keogh
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM 1998 ENTERPRISE FUND, LLC
By: Cramer Rosenthal McGlynn, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
____________________________
Name: Eugene A. Trainor, III
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
A.C. ISRAEL ENTERPRISES, INC.
By: /s/Jay Howard
____________________________
Name: Jay Howard
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM-EFO PARTNERS, L.P.
By: CRM-EFO Investments, LLC,
Its General Partner
By: CRM Management, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
______________________________
Name: Eugene A. Trainor, III
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
_______________________________
Richard S. Fuld, Jr.
By: Cramer Rosenthal McGlynn, Inc.,
Attorney-in-Fact
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor, III
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
PAMELA EQUITIES CORP.
By: /s/Gregory Manocherian
______________________________
Name: Gregory Manocherian
Title: Vice President
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
WHITEHALL PROPERTIES, LLC
By: /s/Gregory Manocherian
______________________________
Name: Gregory Manocherian
Title: Manager
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
KABUKI PARTNERS ADP, GP
By: /s/Gregory Manocherian
______________________________
Name: Gregory Manocherian
Title: General Partner
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
McGLYNN FAMILY PARTNERSHIP
By: /s/Ronald H. McGlynn
______________________________
Name: Ronald H. McGlynn
Title: General Partner
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Fred M. Filoon
_____________________________
Fred M. Filoon
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Eugene A. Trainor
_____________________________
Eugene A. Trainor, III
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
CRAMER ROSENTHAL McGLYNN, LLC
By: /s/Eugene A. Trainor
___________________________
Name: Eugene A. Trainor, III
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
Exhibit A
List of Purchasers and Allocation of Purchase
Name of Purchaser Purchase Price Number of Shares
Gerald B. Cramer $54,593.00 218,372
A.C. Israel Enterprises, Inc. 54,593.00 218,372
CRM 1998 Enterprise Fund, LLC 148,493.00 593,972
L.A.D. Equity Partners, L.P. 16,377.00 65,508
CRM-EFO Partners, L.P. 13,648.00 54,592
Richard S. Fuld, Jr. 8,189.00 32,756
Cramer Rosenthal McGlynn, LLC 33,333.50 133,334
McGlynn Family Partnership 5,459.00 21,836
Edward J. Rosenthal, Keogh 5,459.00 21,836
Fred M. Filoon 5,459.00 21,836
Eugene A. Trainor, III 2,730.00 10,920
Kabuki Partners ADP, GP 33,750.00 135,000
Pamela Equities Corp. 76,291.50 305,166
Whitehall Properties, LLC 41,625.00 166,500
Total $500,000.00 2,000,000
PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated October 21, 1998, by and among LogiMetrics,
Inc., a Delaware corporation (the "Company"), and the purchasers listed on the
signature pages hereto (collectively, the "Purchasers").
W I T N E S S E T H:
WHEREAS, on the terms and subject to the conditions set forth herein,
the Company desires to sell to the Purchasers, and the Purchasers desire to
purchase from the Company, $2,666,667 in aggregate principal amount of the
Company's Class C 13% Convertible Senior Subordinated Debentures due September
30, 1999 (the "Debentures") convertible into an aggregate of up to 8,602,151
shares of Common Stock, par value $.01 per share (the "Common Stock" and,
together with the Debentures, the "Securities"), of the Company, subject to
adjustment in certain circumstances (the Debentures to be in substantially the
form of Exhibit A hereto);
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, and intending to be legally bound, the parties hereto agree as follow:
Article I
Purchase and Sale of Securities
Section 1.1. Purchase and Sale of Securities. Upon the terms and
subject to the conditions of this Agreement, on the date hereof the Company
shall issue and sell to the Purchasers, and such Purchasers shall purchase from
the Company, $2,666,667 in aggregate principal amount of the Debentures at an
aggregate purchase price of $2,000,000 (the "Purchase Price"). The amount of
Debentures to be purchased by each Purchaser pursuant to this Section 1.1 and
the aggregate Purchase Price allocable to each Purchaser is set forth on Exhibit
B attached hereto.
Section 1.2. Closing. The closing of the transactions contemplated by
Section 1.1 above (the "Closing") shall take place at the offices of the Company
at 10:00 a.m. on the date hereof, or at such other time and place as the parties
hereto may mutually agree. The time and date of the Closing is hereinafter
referred to as the "Closing Date." At the Closing, the Purchasers shall pay the
Purchase Price in immediately available funds by wire transfer to an account
previously designated by the Company. In exchange for the payment of the
Purchase Price, the Company shall execute, issue and deliver to the Purchasers
the Debentures registered in the name of the respective Purchasers as specified
in Exhibit B attached hereto.
<PAGE>
Article II
Representations and Warranties of the Company
The Company represents and warrants to the Purchasers as follows:
Section 2.1. Organization and Qualification. Each of the Company and
mmTech, Inc. ("mmTech") is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to own or lease its property and assets and to
carry on its business as presently conducted, and is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the failure to be so qualified and in good standing would result in a
material adverse change in the business, financial condition, results of
operations or prospects (financial and other) of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Change"). The Company has
previously provided to the Purchasers true and complete copies of (i) its
Certificate of Incorporation of and all amendments thereto and (ii) its by-laws
as currently in effect. Other than mmTech and LogiMetrics FSB, Inc., the Company
does not own any material amount of any shares of stock of any corporation or
any equity interest in a partnership, joint venture or other business entity,
and the Company does not control or have the right (whether or not presently
exercisable) to control any other corporation, partnership, joint venture or
other business entity by means of ownership, management contract or otherwise.
Section 2.2. Authorization. (a) The Company has the corporate power and
authority to execute and deliver this Agreement, the Registration Rights
Agreement, dated of even date herewith (the "Registration Rights Agreement"),
among the Company and the Purchasers and the Debentures (collectively, the
"Transaction Documents") and to perform its obligations hereunder and
thereunder, all of which have been duly authorized by all requisite corporate
action. Each of this Agreement and the Registration Rights 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) The Debentures have been duly authorized and, when issued in accordance
with the terms hereof, will have been duly executed, issued and delivered and
will constitute valid and legally binding obligations of the Company,
enforceable 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 and to general equity
principles. The Company has sufficient authorized and unissued shares of Common
Stock reserved for issuance upon the conversion of the Debentures in accordance
with their terms. The shares of Common Stock issuable upon the conversion of the
Debentures will, when issued in accordance with the terms of the Debentures, be
duly authorized, validly issued, fully paid and non-assessable.
(e) Except as described in Schedule 2.2, the issuance or conversion of the
Debentures will not (i) require the Company to issue any shares of its capital
stock or any security exercisable for or convertible or exchangeable into shares
of its capital stock to any person, or (ii) require any
<PAGE>
adjustment in the exercise price or number of shares of the Company's capital
stock issuable upon the exercise of the Company's outstanding securities.
Section 2.3. Non-contravention. Except as set forth in Schedule 2.3,
neither the execution and delivery of this Agreement and the other Transaction
Documents by the Company nor the performance by the Company of its obligations
hereunder and thereunder will (i) contravene any provision contained in the
Company's Certificate of Incorporation or by-laws, (ii) violate or result in a
breach (with or without the lapse of time, the giving of notice or both) of or
constitute a default under (A) any contract, agreement, commitment, indenture,
mortgage, lease, pledge, note, license, permit or other instrument or obligation
or (B) any judgment, order, decree, law, rule or regulation or other restriction
of any governmental authority, in each case to which the Company is a party or
by which it is bound or to which any of its assets or properties are subject,
(iii) result in the creation or imposition of any lien, claim, charge, mortgage,
pledge, security interest, equity, restriction or other encumbrance
(collectively, "Encumbrances") on any of the Company's assets or properties, or
(iv) result in the acceleration of, or permit any person to accelerate or
declare due and payable prior to its stated maturity, any material obligation of
the Company.
Section 2.4. No Consents. 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
other Transaction Documents by the Company or the consummation of the
transactions contemplated hereby or thereby by the Company, except (i) for such
consents and approvals as have previously been obtained and are in full force
and effect, and (ii) for such filings and registrations as may be required under
applicable securities laws. Assuming that the representations and warranties
contained in Article III hereof are true and correct in all respects, the offer
and sale of the Securities as contemplated hereby does not require registration
under the provisions of the Securities Act of 1933, as amended (the "Securities
Act"), or any applicable state securities or "blue sky" laws.
Section 2.5. Capitalization of the Company. The Company's authorized
capital stock consists solely of 100,000,000 authorized shares of Common Stock,
of which 28,470,430 shares were issued and outstanding as of the date hereof;
and 200 shares of Preferred Stock, par value $.01 per share, of which, 28
shares, designated as Series A 12% Cumulative Convertible Redeemable Preferred
Stock, stated value $50,000 per share, were issued and outstanding as of the
date hereof. No shares of the Company's capital stock are held as treasury
shares. In addition, as of the date hereof 39,428,429 shares of Common Stock
were reserved for issuance upon the exercise or conversion of outstanding
securities of the Company. Except as set forth on Schedule 2.5, the Company does
not have (i) any shares of Common Stock or Preferred Stock reserved for
issuance, or (ii) any outstanding option, warrant, right, call or commitment
relating to its capital stock or any outstanding securities or obligations
convertible into or exchangeable for, or giving any person any right to
subscribe for or acquire from it, any shares of its capital stock (collectively,
"Company Securities"). There are no outstanding obligations of the Company to
repurchase, redeem or otherwise acquire any Company Securities. There are no
pre-emptive or other subscription rights with respect to any shares of the
Company's capital stock or any securities convertible into or exchangeable for
shares of the Company's capital stock and all of
<PAGE>
the issued and outstanding shares of capital stock of the Company have been duly
authorized, validly issued, are fully paid and are nonassessable. All of the
Company's outstanding securities were offered, issued, sold and delivered by the
Company in compliance with all applicable state and federal securities laws.
None of such securities were issued in violation of any pre-emptive or
subscription rights of any person.
Section 2.6. SEC Reports. (a) The Company has made available to the
Purchasers true and complete copies of each report, schedule and registration
statement, including the exhibits thereto (but excluding exhibits incorporated
therein by reference), filed by the Company with the Securities and Exchange
Commission (the "Commission") since January 1, 1997, which, except for the
filing of an Annual Report on Form 10-KSB for the fiscal year ended June 30,
1998, are all the documents that the Company was required to file with the
Commission since that date and through the date hereof (all of such documents as
amended as of the date hereof collectively, the "SEC Documents"). Schedule 2.6
sets forth a true and complete list of the SEC Documents as of the date hereof.
As of their respective dates, the SEC Documents (as amended as of the date
hereof) complied as to form in all material respects with the requirements of
the Securities Act or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as the case may be, and the rules and regulations of the
Commission thereunder. As of their respective dates, except to the extent that
information contained therein has been revised or superseded by a later filed
SEC Document, none of the SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply as to form in all
material respects with applicable accounting requirements and the published
rules and regulations of the Commission with respect thereto, have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis (except as may be indicated in the notes thereto or, in the
case of the unaudited statements, as permitted by Form 10-Q) and fairly present
(subject, in the case of the unaudited statements, to normal, recurring audit
adjustments) the financial position of the Company as of the dates thereof and
the results of its operations and cash flows for the periods then ended.
Section 2.7. [reserved]
Section 2.8. Absence of Certain Developments. Except as disclosed in
Amendment No. 1 to the Company's Registration Statement on Form SB-2 (File No.
333-51459) filed with the SEC on July 10, 1998 or as disclosed in Schedule 2.8,
since March 31, 1998, there has not been any Material Adverse Change. Except for
this Agreement and the transactions contemplated hereby, since March 31, 1998
the Company has conducted its business in the ordinary and usual course
consistent with past practices.
Section 2.9. Governmental Authorizations; Licenses; Etc. Except as
disclosed in Schedule 2.9, the business of each of the Company and mmTech has
been operated in compliance with applicable laws, rules, regulations, codes,
ordinances, orders, policies and guidelines of all governmental authorities
(excluding Environmental Laws which are specifically covered in Section 2.13
hereof), except for violations which, individually or in the aggregate, would
not
<PAGE>
result in a Material Adverse Change. Except as disclosed in Schedule 2.9, each
of the Company and mmTech has all permits, licenses, approvals, certificates and
other authorizations, and has made all notifications, registrations,
certifications and filings with all governmental authorities, necessary or
advisable for the operation of their respective businesses as currently
conducted. Except as disclosed in Schedule 2.9, to the Company's best knowledge
there is no action, case or proceeding pending or overtly threatened by any
governmental authority with respect to (i) any alleged violation by the Company,
mmTech or their respective affiliates of any law, rule, regulation, code,
ordinance, order, policy or guideline of any governmental authority, or (ii) any
alleged failure by the Company, mmTech or their respective affiliates to have
any permit, license, approval, certification or other authorization required in
connection with the operation of its business.
Section 2.10. Litigation. Except as disclosed in Schedule 2.10, there are
no lawsuits, actions, proceedings, claims, orders or investigations pending or,
to the Company's best knowledge, overtly threatened against the Company or
mmTech (i) relating to the Company, mmTech, their respective businesses or any
product alleged to have been manufactured or sold by either of them, (ii)
seeking to enjoin the transactions contemplated hereby, or (iii) which,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Change.
Section 2.11. Undisclosed Liabilities. Other than those reflected in the
financial statements included in (i) the Company's Annual Report on Form 10-KSB
(as amended as of the date hereof), and (ii) the Company's Quarterly Reports on
Form 10-QSB for the fiscal quarters ended September 30, 1997, December 31, 1997
and March 31, 1998 (each as amended as of the date hereof), there are no
material liabilities of the Company or mmTech of any kind or nature whatsoever,
whether known or unknown, absolute, accrued, contingent or otherwise, or whether
due or to become due, which are required to be disclosed on financial statements
prepared in accordance with generally accepted accounting principles, other than
liabilities incurred in the ordinary course of business consistent with past
practices since March 31, 1998.
Section 2.12. Taxes. Except as disclosed in Schedule 2.12, all federal,
state, county, local and foreign tax returns and reports of the Company and
mmTech required to be filed have been duly filed. Except as disclosed in
Schedule 2.12, all federal, state, county, local, foreign and any other taxes
(including all income, withholding and employment taxes), assessments (including
interest and penalties), fees and other governmental charges with respect to the
employees, properties, assets, income or franchises of the Company and mmTech
have been paid or duly provided for, or are being contested in good faith by
appropriate proceedings as previously disclosed to the Purchaser in writing and
adequate reserves therefor have been established pursuant to generally accepted
accounting principles, or have arisen after the date hereof in the ordinary
course of business.
Section 2.13. Environmental Matters. Except as disclosed in Schedule 2.13,
to the Company's best knowledge (i) the business of each of the Company and
mmTech is being conducted in compliance with all applicable Environmental Laws,
(ii) the real property currently owned or operated by the Company or mmTech
(including, without limitation, soil, groundwater
<PAGE>
or surface water on or under the properties and buildings thereon) (the
"Affected Property") does not contain any Regulated Substance other than as
permitted under applicable Environmental Laws, (iii) neither the Company nor
mmTech has received any notice from any governmental authority that the Company
or mmTech may be a "potentially responsible party" (as such term is defined
under the Comprehensive Environmental Response, Compensation and Control Act, 42
U.S.C. ss. 9601, et seq.) in connection with any waste disposal site or facility
used by the Company or mmTech, and (iv) the Company, mmTech and the Affected
Property are not presently subject to a suit or judgment arising under any
Environmental Law.
As used herein, "Environmental Laws" means any federal, state and local
law, statute, ordinance, rule, regulation, license, permit, authorization,
approval, consent, court order, judgment, decree, injunction, code, requirement
or agreement with any governmental authority, (x) relating to pollution (or the
cleanup thereof or the filing of information with respect thereto), human health
or the protection of air, surface water, ground water, drinking water supply,
land (including land surface or subsurface), plant and animal life or any other
natural resource, or (y) concerning exposure to, or the use, storage, recycling,
treatment, generation, transportation, processing, handling, labeling,
production or disposal of Regulated Substances, in each case as amended and as
now or hereafter in effect. The term Environmental Law includes, without
limitation, (i) the Comprehensive Environmental Response Compensation and
Liability Act of 1980, the Water Pollution Control Act, the Clean Air Act, the
Clean Water Act, the Solid Waste Disposal Act (including the Resource
Conservation and Recovery Act of 1976 and the Hazardous and Solid Waste
Amendments of 1984), the Toxic Substances Control Act, the Insecticide,
Fungicide and Rodenticide Act, the Occupational Safety and Health Act of 1970,
each as amended and as now or hereafter in effect, and (ii) any common law or
equitable doctrine (including, without limitation, injunctive relief and tort
doctrines such as negligence, nuisance, trespass and strict liability) that may
impose liability or obligations for injuries or damages due to or threatened as
a result of the presence of, exposure to, or ingestion of, any Regulated
Substance.
As used herein, "Regulated Substances" means pollutants, contaminants,
hazardous or toxic substances, compounds or related materials or chemicals,
hazardous materials, hazardous waste, flammable explosives, radon, radioactive
materials, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, petroleum and petroleum products (including, but not limited to,
waste petroleum and petroleum products) as regulated under applicable
Environmental Laws.
Section 2.14. Proprietary Rights. Except as disclosed in Schedule 2.14,
each of the Company and mmTech owns and possesses all right, title and interest
in the patents, patent registrations, patent applications, trademarks, service
marks, trademark and service mark registrations and applications therefor,
copyrights, copyright registrations, copyrights applications, trade names,
corporate names, technology, inventions, computer software, data and
documentation (including electronic media), product drawings, trade secrets,
know-how, customer lists, processes, other intellectual property and proprietary
information or rights used in their respective businesses as presently
conducted; or owns or possesses permits, licenses or other agreements to or from
third parties regarding the foregoing (collectively, the "Proprietary
<PAGE>
Rights"). Except as disclosed in Schedule 2.14, to the Company's best knowledge,
there is not pending or overtly threatened against the Company or mmTech any
claim by any third party contesting the validity, enforceability, use or
ownership of any Proprietary Right. Except as disclosed in Schedule 2.14, to the
Company's best knowledge, neither the Company nor mmTech has received any notice
of any infringement or misappropriation by, or conflict with, any third party
with respect to any of the Proprietary Rights.
Section 2.15. Books and Records. The stock records of the Company fairly
and accurately reflect in all material respects the record ownership of all of
the outstanding shares of the Company's capital stock. The other books and
records of the Company and mmTech, including financial records and books of
account, are complete and accurate in all material respects and have been
maintained in accordance with sound business practices.
Section 2.16. Brokers. No person is or will be entitled to a broker's,
finder's, investment banker's, financial adviser's or similar fee from the
Company in connection with this Agreement or any of the transactions
contemplated hereby.
Section 2.17. Use of Proceeds. The Company will use the net proceeds of the
sale of the Securities for working capital and general corporate purposes.
Section 2.18. Absence of Questionable Payments. Neither the Company, mmTech
nor any affiliate, director, officer, employee, agent, representative or other
person acting on behalf of the Company or mmTech has: (i) used any corporate or
other funds for unlawful contributions, payments, gifts or entertainment, or
made any unlawful expenditures relating to political activities to government
officials or others, or (ii) accepted or received any unlawful contributions,
payments, gifts or expenditures.
Section 2.19. Accuracy of Representations. No representation or warranty
made by the Company in this Agreement or any document delivered, or to be
delivered, by or on behalf of the Company pursuant hereto contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading. Except as disclosed
in the SEC Documents or in the Schedules to this Agreement, there is no fact or
circumstance that the Company has not disclosed to the Purchasers in writing
that the Company presently believes has resulted, or could reasonably be
expected to result, in a Material Adverse Change or could reasonably be expected
to have a material adverse effect on the ability of the Company to perform its
obligations under this Agreement.
Article III
Representations and Warranties of the Purchasers
The Purchasers hereby, severally and not jointly, represent and warrant to
the Company as follows:
<PAGE>
Section 3.1. Organization. Each Purchaser that is not an individual is
either a corporation, limited liability company, general partnership or limited
partnership, duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization. Schedule 3.1 hereto sets forth the
type of entity and the jurisdiction of organization for each Purchaser that is
not an individual.
Except as set forth in Schedule 3.1, each of the Purchasers is a "U.S.
person" as such term is defined in Section 7701(a)(30) of the Code. Each
Purchaser that is a U.S. person has previously provided the Company with a
completed Form W-9 certifying that such Purchaser is not subject to back-up
withholding with respect to amounts payable to such Purchaser by the Company.
Each Purchaser that is not a U.S. person has previously provided the Company
with a completed Form W-8 certifying that such Purchaser is not subject to
certain U.S. information return reporting or back-up withholding with respect to
amounts payable to such Purchaser by the Company.
Section 3.2. Authorization. Each Purchaser that is not an individual has
the power and authority (corporate, limited liability company, partnership and
other) to execute and deliver this Agreement and to perform its obligations
hereunder, all of which have been duly authorized by all requisite corporate,
limited liability company or partnership action. Each Purchaser that is an
individual has the capacity to execute and deliver this Agreement and to perform
his or her obligations hereunder. Each such individual Purchaser is under no
impairment or other disability, legal, physical, mental or otherwise, that would
preclude or limit the ability of such Purchaser to perform his or her
obligations under this Agreement. This Agreement has been duly authorized,
executed and delivered by each Purchaser and constitutes a valid and binding
agreement of such Purchaser, enforceable against such Purchaser in accordance
with its terms.
Section 3.3. Access to Information. The Purchasers have received copies of
the SEC Documents or have otherwise examined copies of such SEC Documents to the
extent they deemed necessary or advisable to evaluate the risks and merits of an
investment in the Company. Any Purchaser formed for the purpose of investing in
the Securities or the Additional Securities (a "New Purchaser") has provided
access to such SEC Documents to each investor in such Purchaser (the
"Investors"). In addition, the Purchasers and their respective purchaser
representatives, if any, have 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 offering of the Securities.
Section 3.4. Accredited Investor. Each Purchaser 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. No offering or sale of
interests in any Purchaser or any other security of such Purchaser was made to
any person, other than such "Accredited Investors." Schedule 3.4 hereto sets
forth a list of the New Purchasers. Other than such New Purchasers, no Purchaser
was formed for the purpose of investing in the Securities.
Section 3.5. Investment Intent. (a) Each Purchaser is acquiring the
Securities for its own account for investment only and not for or with a view to
resale or distribution. No Purchaser
<PAGE>
has entered into any contract, undertaking, agreement or arrangement with any
person to sell, transfer or pledge to such person or anyone else the Securities
and no Purchaser has any present plans or intentions to enter into any such
contract, undertaking, agreement or arrangement.
(b) Each Purchaser has the financial ability to bear the economic risk of
losing its entire investment in the Securities, 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.
(c) The overall commitment of each Purchaser to investments which are not
readily marketable is not disproportionate to its net worth, and an investment
in the Securities will not cause such overall commitment to become excessive.
Each Purchaser's need for diversification in its investment portfolio will not
be impaired by an investment in the Company.
(d) Each Purchaser has adequate means of satisfying its short term needs
for cash and has no present need for liquidity which would require it to sell
its Securities or any interest therein.
(e) Each Purchaser has substantial experience in making investment
decisions of this type and/or is relying on its own advisors in making this
investment decision and, therefore, either alone or together with its advisors,
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of an investment in the Company.
(f) Each Purchaser understands that the Securities constitute restricted
securities within the meaning of Rule 144 promulgated under the Securities Act,
and that none of the Securities, or any interest therein, may be sold 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.
(g) Each Purchaser has considered and, to the extent such Purchaser
believed such discussion was necessary, discussed with its professional legal,
tax and financial advisers the suitability of an investment in the Company for
such Purchaser's particular tax and financial situation and each Purchaser has
determined that the Securities are a suitable investment for it.
(h) EACH PURCHASER UNDERSTANDS THAT AN INVESTMENT IN THE SECURITIES BEING
PURCHASED BY IT INVOLVES A HIGH DEGREE OF RISK, INCLUDING WITHOUT LIMITATION,
RISKS RELATING TO THE COMPANY's HISTORY OF LOSSES, RISKS RELATING TO THE RECENT
CHANGE IN THE COMPANY'S BUSINESS FOCUS, RISKS RELATING TO THE COMPANY'S
DEPENDENCE UPON THE DEVELOPMENT OF NEW MARKETS OF UNCERTAIN SIZE AND GROWTH
PROSPECTS, THE COMPANY's DEFAULTS UNDER SUBSTANTIALLY ALL OF ITS INDEBTEDNESS
AND OUTSTANDING PREFERRED STOCK, THE COMPANY'S CONTINUING NEED FOR ADDITIONAL
CAPITAL, THE Company's NEED FOR LIQUIDITY, THE EFFECTS OF COMPETITION, THE
COMPANY'S RELIANCE ON KEY PERSONNEL, THE COMPANY'S DEPENDENCE ON TECHNOLOGY AND
TECHNOLOGICAL INNOVATION, THE EFFECTS OF
<PAGE>
GOVERNMENT REGULATION OF THE TELECOMMUNICATIONS INDUSTRY, THE RESTRICTIONS ON
TRANSFER OF THE SECURITIES, THE SUBORDINATION PROVISIONS OF THE DEBENTURES,
POTENTIAL CONFLICTS OF INTEREST AND RELATED PARTY TRANSACTIONS INVOLVING THE
COMPANY AND THE DIRECTORS AND OFFICERS OF THE COMPANY, and RISKS RELATING TO THE
SUCCESSFUL EXECUTION OF THE COMPANY'S BUSINESS AND OPERATING STRATEGY.
(i) Each New Purchaser has received representations and warranties from
each Investor in such New Purchaser similar to those contained in this Section
3.5, and such representations and warranties specifically authorize the Company
to rely thereon.
(j) The offer and sale of interests in each New Purchaser to the Investors
therein did not require registration under the provisions of the Securities Act
or any applicable state securities or "blue sky" laws. Each New Purchaser
complied in all material respects with the requirements of applicable state
securities or "blue sky" laws with respect to such offer and sale.
(k) The placement materials used by each New Purchaser or its agents in
connection with the offer and sale of interests in such New Purchaser did not
contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that no representation or warranty is made with respect to information regarding
the Company and mmTech provided to any such New Purchaser by the Company
expressly for use in such placement materials.
Section 3.6. Financial Resources. Each Purchaser has cash or credit
facilities presently available to meet all of its payment obligations hereunder.
Section 3.7. Brokers. No person is or will be entitled to a broker's,
finder's, investment banker's, financial adviser's or similar fee from any
Purchaser in connection with this Agreement or any of the transactions
contemplated hereby.
Section 3.8. Accuracy of Representations. No representation or warranty
made by the Purchaser in this Agreement or any document delivered, or to be
delivered, by it or on its behalf pursuant hereto contains any untrue statement
of a material fact or omits to state a material fact necessary to make the
statements contained herein or therein not misleading.
<PAGE>
Article IV
Restrictions on Transfer; Other Covenants
Section 4.1. Limited Transferability. The Securities, including, without
limitation, the shares of Common Stock issuable upon the conversion of the
Debentures (the "Issuable Shares") shall not be transferable except in
accordance with the provisions of this Article IV, which provisions are intended
to insure compliance with the provisions of the Securities Act in respect of the
transfer of any of such securities.
Section 4.2. Restrictive Legend. The Debentures and any certificates
representing the Issuable Shares shall (unless otherwise permitted by the
provisions of Section 4.4 below) be stamped or otherwise imprinted with the
following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE AND CANNOT BE SOLD OR TRANSFERRED
UNLESS AND UNTIL THEY ARE SO REGISTERED OR UNLESS AN
EXEMPTION UNDER SUCH ACT OR LAWS IS AVAILABLE. THE
TRANSFERABILITY OF THESE SECURITIES IS FURTHER SUBJECT
TO THE PROVISIONS OF A PURCHASE AGREEMENT DATED AS OF
OCTOBER 21, 1998 AMONG THE COMPANY AND THE PURCHASERS
NAMED THEREIN.
For purposes of this Article IV, any references to "Debentures" or
"Issuable Shares" shall include any other securities issued in respect of any of
such securities.
Section 4.3. Restrictions on Transfer. (a) Subject to the provisions of
Section 4.4, the Debentures and the Issuable Shares shall 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 in the event 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 the Purchaser wishing to effect such transfer, reasonably
satisfactory to the Company, that such transfer does not require registration
under the Securities Act or applicable state securities laws. Notwithstanding
the foregoing, any Purchaser may freely transfer at any time or from time to
time the Debentures and/or the Issuable Shares, or any interest therein, to any
other Purchaser or any general partner of such Purchaser, any limited partner of
such Purchaser, any other fund, account or other entity managed, directly or
indirectly, by any general partner of such Purchaser and the respective
subsidiaries and affiliates of any of the foregoing (each, a "Permitted
Transferee") without complying with the provisions of this Article IV (a
"Permitted Transfer") and the Company shall, or shall cause any registrar or
transfer agent to, promptly register any such Permitted Transfer on the books of
the Company; provided,
<PAGE>
however, that in connection with any such Permitted Transfer, the Permitted
Transferees shall acknowledge the restrictions on transferability under
applicable law and agree in writing to be bound by the provisions of this
Article IV.
(b) In addition to the restrictions set forth in paragraph (a) above, for a
period of 90 days after purchase (the "Restrictive Period"), no Purchaser shall
sell, assign, transfer or otherwise dispose of the Securities, or any interest
therein (a "Transfer") (other than a Permitted Transfer), without the prior
written consent of the Company which may be withheld by the Company in its sole
discretion; provided, however, that nothing contained herein shall prohibit any
Purchaser from converting a Debenture in accordance with the terms thereof.
Subject to the restrictions set forth in paragraph (a) above, from and after the
end of the Restrictive Period, a Purchaser may Transfer all or a portion of its
Securities, or any interest therein, without the consent of the Company.
Section 4.4. Registration Rights. The Purchasers shall be entitled to
registration rights with respect to the Debenture Shares as set forth in the
Registration Rights Agreement.
Article V
Right of First Refusal
Section 5.1. Right of First Refusal. (a) If the Company proposes to obtain
additional financing (a "Financing") prior to September 30, 1999 from a third
party, the Company shall first give to the Purchasers a notice (an "Offer
Notice") setting forth in reasonable detail the amount, structure and other
terms of the proposed Financing. The Purchasers shall thereafter have the
exclusive right (the "Refusal Right"), upon written notice given to the Company
by the holders of a majority of the outstanding principal amount of the
Debentures (the "Majority Holders") no later than ten business days after
receipt of the Offer Notice, to provide the Financing to the Company on the
terms set forth in the Offer Notice (an "Acceptance Notice"). An Acceptance
Notice shall constitute an irrevocable joint and several commitment by the
Purchasers executing such Acceptance Notice (the "Accepting Purchasers") to
provide the Company with the Financing on the terms specified in the Offer
Notice. The obligation to provide the Financing may be allocated among the
Accepting Purchasers, or any one or more of them, as the Accepting Purchasers
may determine in their sole discretion. The closing of the Financing shall take
place on such date, no less than ten and no more than thirty days after the date
of the Acceptance Notice, as the Company and the Accepting Holders may agree.
(b) If the Purchasers do not provide an Acceptance Notice within the ten
business-day period set forth in clause (a) above, the Company shall have the
right for up to 90 days thereafter to obtain a Financing on the terms specified
in the Offer Notice from one or more third parties (including on or more of the
Purchasers).
Section 5.2. Exceptions. The Refusal Right granted to the Purchasers in
Section 5.1 hereof shall not apply to (i) a Qualifying Offering, (ii) any
replacement, renewal, extension,
<PAGE>
modification or amendment of the Company's current lending facility with North
Fork Bank provided, however, that the principal amount of such facility after
giving effect thereto shall not exceed $2.8 million, (iii) any trade credit
(whether or not evidenced by a note or other instruments), (iv) any receivables
financing arrangements, (v) the issuance of securities in connection with the
acquisition of the assets or stock of any other business, (vi) the exercise or
conversion of any security outstanding on the issuance date of the Debentures,
(vii) the issuance and exercise of awards made from and after the date hereof
pursuant to the Company's 1997 Stock Compensation Program (the "Plan"), or
(viii) pursuant to any other plan or arrangement approved by the Company's Board
of Directors or the Compensation Committee thereof subject to an aggregate limit
of 2,000,000 shares of Common Stock for issuances pursuant to clauses (vii) and
(viii) (subject to adjustment in the circumstances set forth in the Plan or such
arrangements).
Article VI
Deliveries at Closing
Section 6.1. Deliveries by the Company. At the Closing, the Company shall
deliver to the Purchasers the following in form and substance reasonably
satisfactory to the Purchasers' counsel:
(a) a certificate of the President or a Vice President of the Company,
dated the Closing Date, to the effect that (i) the person signing such
certificate is familiar with this Agreement, (ii) all representations and
warranties made by the Company in this Agreement are true, correct and complete
in all material respects as of the Closing, (iii) the Company has duly performed
or complied with, in all material respects, all of the covenants, obligations
and agreements to be performed or complied with by it under the terms of this
Agreement on or prior to or at the Closing, and (iv) except as disclosed
pursuant to this Agreement, there has been no Material Adverse Change or
prospective change which could reasonably be expected to result in a Material
Adverse Change since March 31, 1998;
(b) a certificate of the Secretary or Assistant Secretary of the Company,
dated the Closing Date, as to the incumbency of any officer of the Company
executing this Agreement or any document related thereto and covering such other
matters as the Purchasers may reasonably request;
(c) a certified copy of the resolutions of the Company's Board of Directors
authorizing the execution, delivery and consummation of this Agreement and the
transactions contemplated hereby;
(d) an executed counterpart of the Registration Rights Agreement;
(e) the Debentures, duly executed, issued and delivered by the Company and
registered in the names of the Purchasers as they may specify;
<PAGE>
(f) an executed counterpart of the Stock Purchase Agreement, dated of
even date herewith (the "Stock Purchase Agreement") among Charles S. Brand and
the Purchaser;
(g) executed undertaking letters from each of Francisco A. Garcia, Norman
M. Phipps and Kenneth C. Thompson; and
(h) such other documents or instruments as the Purchasers reasonably
request to effect the transactions contemplated hereby.
Section 6.2. Deliveries by the Purchasers. At the Closing, the Purchasers
shall deliver to the Company the following in form and substance reasonably
satisfactory to the Company's counsel:
(a) evidence that the Purchase Price has been paid in full;
(b) an executed counterpart of the Registration Rights Agreement;
(c) an executed counterpart of the Stock Purchase Agreement; and
(d) such other documents or instruments as the Company reasonably requests
to effect the transactions contemplated hereby.
ARTICLE VII
Survival, Amendment and Waiver
Section 7.1. Survival of Representations and Warranties. The
representations and warranties contained in this Agreement or any certificate
delivered in connection herewith shall survive the Closing, and shall apply with
respect to claims asserted in writing within one year thereof. The provisions of
this Section 7.1 shall not limit any covenant or agreement of the parties hereto
which, by its terms, contemplates performance after the applicable Closing.
Section 7.2. Amendments. This Agreement (including the provisions of this
Section 7.2) may not be amended or modified except by an instrument in writing
signed on behalf of all of the parties affected by such amendment or
modification.
Section 7.3. Extension; Waiver. The parties hereto may (i) extend the time
for performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto, and (iii) waive compliance with any of the agreements 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.
<PAGE>
The failure of a party hereto to assert any of its rights hereunder shall not
constitute a waiver of such rights.
ARTICLE VIII
Miscellaneous
Section 8.1. Notices. All notices, requests, claims, demands, waivers and
other communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, when delivered by courier, three days
after being deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested), or when received by facsimile transmission
upon receipt of a confirmed transmission report, as follows:
If to the Company: 50 Orville Drive
Bohemia, New York 11716
Tel: (516) 784-4110
Fax: (516) 784-4132
Attention: Chief Executive Officer
and if to the other parties at the address or facsimile transmission number
specified below its name on the signature pages hereto (or, in the case of
Persons who become parties hereto subsequently, at their last addresses or
facsimile transmission numbers shown on the record books of the Company). Any
party hereto, by notice given to the other parties hereto in accordance with
this Section 8.1 may change the address or facsimile transmission number to
which such notice or other communications are to be sent to such party.
Section 8.2. Expenses. The Company shall pay its own expenses incident to
this Agreement and the transactions contemplated herein. The Company shall be
responsible for and shall pay at the Closing the fees and disbursements of
counsel to the Purchasers incurred in connection with the negotiation, execution
and delivery of this Agreement and the other Transaction Documents and the
closing of the transactions contemplated hereby and thereby.
Section 8.3. 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 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.
<PAGE>
Section 8.4. Assignment; Successors and Assigns; No Third Party Rights.
This Agreement may not be assigned by operation of law or otherwise, and any
attempted assignment shall be null and void; provided, however, that any
Purchaser may assign this Agreement (or any interest herein) to one or more
Permitted Transferees so long as such Purchaser also assigns to such Permitted
Transferees its rights and obligations under the other Transaction Documents to
which it is a party. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, permitted
assigns and legal representatives. This Agreement shall be for the sole benefit
of the parties to this Agreement and their respective heirs, 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 heirs, successors, assigns and legal representatives, any legal or
equitable right, remedy or claim hereunder.
Section 8.5. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original agreement, but all of which together
shall constitute one and the same instrument.
Section 8.6. 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 8.7. Entire Agreement. This Agreement and the other Transaction
Documents constitute the entire agreement among the parties with respect to the
matters covered hereby and thereby and supersede all previous written, oral or
implied understandings among them with respect to such matters, including,
without limitation, the term sheet, dated October 16, 1998.
Section 8.8. 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 8.9. No Strict Construction. Each of the parties hereto acknowledge
that this Agreement has been prepared jointly by the parties hereto, and shall
not be strictly construed against either party.
[Remainder of page intentionally left blank]
<PAGE>
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/Norman M. Phipps
________________________
Name: Norman M. Phipps
Title: President
/s/Steven Dinetz
_____________________________
Steven Dinetz
1034 Skyland Drive
Zephyr Cove, Nevada 89448
Tel: (702) 588-0343
(702) 588-1433
/s/Gerald B. Cramer
____________________________
Gerald B. Cramer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
/s/Edward J. Rosenthal
____________________________
Edward J. Rosenthal, Keogh
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM 1998 ENTERPRISE FUND, LLC
By: Cramer Rosenthal McGlynn, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
______________________________
Name: Eugene A. Trainor, III
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
A.C. ISRAEL ENTERPRISES, INC.
By: /s/Jay Howard
_________________________
Name: Jay Howard
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
CRM-EFO PARTNERS, L.P.
By: CRM-EFO Investments, LLC,
Its General Partner
By: CRM Management, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
_________________________
Name: Eugene A. Trainor, III
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
_______________________________
Richard S. Fuld, Jr.
By: Cramer Rosenthal McGlynn, Inc.,
Attorney-in-Fact
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor, III
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
PAMELA EQUITIES CORP.
By: /s/Gregory Manocherian
_______________________________
Name: Gregory Manocherian
Title: Vice President
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
WHITEHALL PROPERTIES, LLC
By: /s/Gregory Manocherian
________________________
Name: Gregory Manocherian
Title: Manager
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
KABUKI PARTNERS ADP, GP
By: /s/Gregory Manocherian
__________________________
Name: Gregory Manocherian
Title: General Partner
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
<PAGE>
McGLYNN FAMILY PARTNERSHIP
By: /s/Ronald H. McGlynn
` _______________________________
Name: Ronald H. McGlynn
Title: General Partner
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Fred M. Filoon
______________________________________
Fred M. Filoon
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Eugene A. Trainor
______________________________________
Eugene A. Trainor, III
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Charles S. Brand
______________________________________
Charles S. Brand
20 Meridian Way
Eatontown, New Jersey 07724
Tel: (732) 935-7150
Fax: (732) 935-7151
<PAGE>
EXHIBIT A
FORM OF DEBENTURE
<PAGE>
EXHIBIT B
LIST OF PURCHASERS AND ALLOCATION OF PURCHASE
Name of Purchaser Purchase Price Principal Amount
of Debentures
Gerald B. Cramer $181,976.00 $242,634.66
A.C. Israel Enterprises, Inc. 181,976.00 242,634.66
CRM 1998 Enterprise Fund, LLC 494,975.00 659,966.66
L.A.D. Equity Partners, L.P. 54,591.00 72,788.00
CRM-EFO Partners, L.P. 45,494.00 60,658.67
Richard S. Fuld, Jr. 27,297.00 36,396.00
McGlynn Family Partnership 18,197.00 24,262.67
Edward J. Rosenthal, Keogh 18,197.00 24,262.67
Fred M. Filoon 18,197.00 24,262.67
Eugene A. Trainor, III 9,100.00 12,133.34
Kabuki Partners ADP, GP 112,500.00 150,000.00
Pamela Equities Corp. 198,750.00 265,000.00
Whitehall Properties, LLC 138,750.00 185,000.00
Charles S. Brand 500,000.00 666,667.00
---------- ----------
Total $2,000,000.00 $2,666,667.00
============= =============
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of October 21,
1998, among LogiMetrics, Inc., a Delaware corporation (the "Company"), and the
parties whose names appear on the signature pages hereof.
W I T N E S S E T H:
WHEREAS, the Company and the parties hereto (the "Purchasers") have entered
into a Purchase Agreement of even date herewith (the "Purchase Agreement")
pursuant to which the Company has agreed to sell to such parties $2,666,667 in
aggregate principal amount of its Class C 13% Senior Subordinated Debentures
(the "Debentures"); and
WHEREAS, the Debentures are convertible into shares (the "Debenture
Shares") of the Company's common stock, par value $.01 per share; and
WHEREAS, the Company has agreed to effect the registration of Debenture
Shares on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound, the parties hereto
hereby agree as follows:
1. Certain Definitions.
For purposes of this Agreement, the following terms have the following
meanings when used herein:
(a) "Affiliate" means, with respect to any Person, means any other Person
who directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlled" and "controlling" have meanings correlative thereto.
(b) "Business Day" means any day other than a Saturday or Sunday on which
banking institutions in New York, New York are open for the general conduct of
business.
(c) "Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
(d) "Common Stock" means the Common Stock, par value $.01 per share, of the
Company.
<PAGE>
(e) "Company" means LogiMetrics, Inc., a Delaware corporation, and its
successors and assigns.
(f) "Demand Registration" means any registration of Registrable Securities
effected pursuant to Section 2.
(g) "Effective Date" means the earlier of (i) September 1, 1999 and (ii)
the termination of the engagement letter, dated August 7, 1998, by and between
the Company and Donaldson Lufkin Jenrette Securities Corporation.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any similar successor federal statute), and the rules and regulations
thereunder, as in effect from time to time.
(i) "Holders" means the Purchasers party to the Purchase Agreement or any
permitted transferees thereof holding Registrable Securities.
(j) "Majority Registered Holders" means, in the case of any registration
statement, the Holders of a majority of the Registrable Securities proposed to
be covered in such registration statement (or that are actually so covered).
(k) "Person" means any individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture, or other entity, or a government or
any political subdivision or agency.
(l) "Piggyback Registration" means any registration of Registrable
Securities effected pursuant to Section 3.
(m) "Registrable Securities" means (i) the Debenture Shares, and (ii) any
securities issued or issuable in respect of or in exchange for any of the
Debenture Shares by way of stock dividend or other distribution on the Common
Stock, stock split or combination of shares, recapitalization, reclassification
merger, consolidation or exchange offer. For purposes hereof, a Registrable
Security ceases to be a Registrable Security when either (x) it has been
effectively registered under the Securities Act and sold or distributed to any
Person pursuant to an effective registration statement covering it or (y) it has
been sold or distributed to any Person pursuant to Rule 144 or Rule 145(d).
(n) "Registration" means any Demand Registration or Piggyback Registration.
(o) "Rule 10b-6" means Rule 10b-6 promulgated by the Commission under the
Exchange Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
(p) "Rule 144," "Rule 145" and "Rule 424" mean, respectively, Rule 144,
Rule 145 and Rule 424, each promulgated by the Commission under the Securities
Act, in each case as
<PAGE>
amended from time to time, or any similar successor rule thereto that may be
promulgated by the Commission.
(q) "Securities Act" means the Securities Act of 1933, as amended (or any
similar successor federal statute), and the rules and regulations thereunder, as
the same are in effect from time to time.
2. Demand Registrations.
(a) At any time after the Effective Date and until the earlier of (i) the
date that all of the Registrable Securities may be freely resold by the Holders
thereof pursuant to Rule 144(k) and (ii) two years from the conversion of all of
the Debentures (the "Registration Rights Period"), upon written notice to the
Company from one or more Holders of Registrable Securities who held on the
Effective Date (together with their Affiliates at such time) in the aggregate
not less than 50% of the Debenture Shares (the Holders furnishing such written
notice being hereinafter referred to as the "Initiating Holders") requesting
that the Company effect, pursuant to this Section 2, the registration of any or
all of such Initiating Holders' Registrable Securities under the Securities Act
(which notice shall specify (A) the Registrable Securities so requested to be
registered, (B) the proposed amounts thereof (which in the aggregate shall equal
at least (x) 50% of the Debenture Shares, or (y) if such Registrable Securities
are all of the remaining Registrable Securities held by the Initiating Holders,
25% of the Debenture Shares), and (C) the intended method of disposition by such
Initiating Holders, including whether or not the proposed offering is to be
underwritten), the Company shall promptly (but in any event within 20 days) give
written notice of such requested registration to all Holders, and thereupon the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(x) the Registrable Securities that the Initiating Holders have
requested the Company to register, for disposition in accordance with
the intended method of disposition stated in their notice to the
Company; and
(y) all other Registrable Securities the Holders of which shall have
made a written request to the Company for registration thereof (which
request shall specify such Registrable Securities and the proposed
amounts thereof) within 30 days after the receipt of such written
notice from the Company,
all to the extent requisite to permit the disposition (in accordance with the
method of disposition specified in the notice given to the Company by the
Initiating Holders) by Holders of the securities then constituting Registrable
Securities so to be registered.
(b) Number of Demand Registrations: Duration: Sale of Registrable
Securities. Notwithstanding the provisions of Section 2(a), the Company shall
not be required to effect a Demand Registration pursuant to this Section 2: (i)
if a Demand Registration has previously been effected by the Company pursuant to
this Section 2 within one year of the date on which notice is given by the
Initiating Holders pursuant to Section 2(a); or (ii) if the Company shall
previously have effected two Demand Registrations; provided that a Demand
Registration shall not be
<PAGE>
deemed to have been effected for purposes of the limitations of this Section
2(b) unless the applicable registration statement was declared effective and
kept effective until the earlier of (A) nine months following the date on which
it was declared effective and (B) the sale pursuant thereto of all of the
Registrable Securities covered thereby. A request from Initiating Holders
pursuant to Section 2(a) shall be deemed withdrawn upon commencement of a
Black-Out Period (as defined in Section 4(c)).
(c) Inclusion of Other Securities. The Company shall not include securities
in any Demand Registration other than (i) Registrable Securities, and (ii)
securities entitled to piggyback registration rights granted by the Company
prior to the date hereof without the prior written consent of the Majority
Registered Holders which shall not be unreasonably withheld or delayed.
3. Piggyback Registrations.
(a) Effective Registration. If prior to the end of the Registration Rights
Period the Company proposes to file a registration statement under the
Securities Act with respect to any class of equity securities (other than in
connection with the registration of equity securities issued or issuable
pursuant to a dividend reinvestment, employee stock option, stock purchase,
stock bonus or similar plan or pursuant to a merger, exchange offer or
transaction of the type specified in paragraph (a) of Rule 145) at any time,
then the Company shall give written notice of such proposed filing to the
Holders at least 20 days before the anticipated filing date, and such notice
shall offer the Holders the opportunity to register such amount of Registrable
Securities as each such Holder may request. The Company shall use its best
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the inclusion therein of any Registrable
Securities the Holders of which request, within 15 days after receiving written
notice of the proposed filing from the Company, such inclusion, at the same
initial public offering price and subject to the same underwriting discount and
commissions as any similar securities of the Company so included. Any Holder's
request for such inclusion may be withdrawn, in whole or in part, at any time
prior to the effective date of the registration statement for such offering.
(b) Number of Piggyback Registrations: Duration: Sale of Registrable
Securities. Notwithstanding the provisions of Section 3(a) but subject to the
second proviso to Section 3(c), the Company shall not be required to effect a
Piggyback Registration pursuant to this Section 3 in response to a request made
pursuant to Section 3(a) if the Company shall previously have so effected three
Piggyback Registrations in response to such requests; provided that a Piggyback
Registration shall not be deemed to have been effected for purposes of this
limitation unless, in respect thereof, the following conditions (hereinafter,
the "Conditions") were satisfied: (i) the applicable registration statement
covered the full amount of Registrable Securities requested to be so covered by
each Holder, without any reductions in any such amount pursuant to Section 3(c)
or otherwise, except as a result of withdrawals pursuant to the last sentence of
Section 3(a); and (ii) the applicable registration statement was declared
effective and kept effective until the earlier of (A) nine months following the
date on which it was declared effective and (B) the sale pursuant thereto of all
of the Registrable Securities covered thereby, provided, that such non-month
period shall be tolled during a Black-Out Period (as defined in Section 4(b)).
<PAGE>
(c) Cut-Backs. Notwithstanding the provisions of Section 3(a), if the
managing underwriter or underwriters of a proposed underwritten offering as
described in Section 3(a) deliver a written opinion to the Holders requesting
inclusion of their Registrable Securities, stating that the total amount or kind
of securities that they or any other Persons (other than the Company) seek to
include in such offering would materially and adversely affect the success of
such offering, then, in addition to the number of such securities being included
in the offering for the account of the Company, the Company shall be required to
include in the offering only that number of additional such securities,
including Registrable Securities (collectively, the "Additional Securities"),
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering, and the Additional Securities so included shall be
apportioned pro rata among the selling stockholders and the Holders of
Registrable Securities according to the total amount of securities requested to
be included therein by each selling stockholder and the Holders or in such other
proportions as shall mutually be agreed to by such selling stockholders and the
Holders.
(d) Control by the Company. The Company may withdraw any registration
statement and abandon any proposed offering initiated by the Company without the
consent of any Holder of Registrable Securities, notwithstanding the request of
any such Holder to participate therein in accordance with this Section 3, if the
Board of Directors of the Company determines in its sole discretion that such
action is in the best interests of the Company.
4. Holdback Agreements; Blackouts.
(a) Restrictions on Public Sales by Holders of Registrable Securities. To
the extent not inconsistent with applicable law, each Holder whose Registrable
Securities are included in a Registration that is timely notified in writing by
the managing underwriter or underwriters shall not effect any public sale or
distribution (including a sale pursuant to Rule 144) of any issue being
registered in an underwritten offering (other than pursuant to a dividend
reinvestment, employee stock option, stock purchase, stock bonus or similar
plan, pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) or pursuant to a "shelf" registration), any securities
of the Company similar to any such issue or any securities of the Company
convertible into or exchangeable or exercisable for any such issue, during the
10-day period prior to, and during the 180-day period beginning on, the
effective date of the applicable registration statement (or, if later, the date
on which a bona fide offering of the securities covered thereby commences),
except as part of such Registration.
<PAGE>
(b) Restrictions on Public Sales by the Company. The Company shall not
effect any public sale or distribution for its own account of any issue being
registered in an underwritten offering (other than pursuant to a dividend
reinvestment, employee stock option, stock purchase, stock bonus or similar
plan, pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) under the Securities Act or pursuant to a "shelf"
registration), any securities of the Company similar to any such issue or any
securities of the Company convertible into or exchangeable or exercisable for
any such issue, during the 10-day period prior to, and during the 180-day period
beginning on, the effective date of the applicable registration statement (or,
if later, the date on which a bona fide offering of the securities covered
thereby commences), except as part of such Registration.
(c) Black-Outs. Notwithstanding the provisions of Sections 2 and 3, the
Company may, by giving written notice to the Holders at any time prior to the
effectiveness of the applicable registration statement, delay effecting a Demand
Registration or a Piggyback Registration for a reasonable period of time (the
"Black-Out Period") not to exceed:
(i) 90 days, if at the time the Company is otherwise engaged in an
issuer tender offer (within the meaning of Section 13(e) of the Exchange Act)
for securities of the same class (within the meaning of the Exchange Act) as the
Registrable Securities that are proposed to be registered and sold; provided
that the Board of Directors of the Company shall have determined in good faith,
based on advice of counsel to the Company, that such issuer tender offer may
not, under Rule 10b-6, be continued and consummated if offers or sales of
Registrable Securities were to be made pursuant to such Demand Registration or
Piggyback Registration; provided, further, that the Company, if requested by the
Majority Registered Holders, shall cooperate with the Holders to obtain from the
staff of the Commission a no-action letter to the effect that the staff would
not recommend enforcement action to the Commission with respect to Rule 10b-6,
or would grant an exemption from Rule 10b-6, in the event such offers and sales
were to be so made; and
(ii) 90 days, if at the time the Company is otherwise engaged in a
financing, acquisition, corporate reorganization or other material transaction
whose disclosure in the good faith judgment of the Board of Directors of the
Company would (a) be detrimental to the interests of the Company and (b) based
on advice of counsel to the Company, be required in connection with such Demand
Registration or Piggyback Registration.
5. Registration Procedures.
(a) Company Procedures. Whenever the Company is required by this Agreement
to effect the registration of any Registrable Securities under the Securities
Act pursuant to a registration statement, the Company shall use its best efforts
to effect each such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall, as soon as practicable:
(i) prepare and file with the Commission the requisite registration
statement to effect such registration and thereafter use its best efforts to
cause such registration statement to be declared effective as soon as
practicable and to remain continuously effective for the time period required by
this Agreement to the extent permitted under the Securities Act, provided that
as soon as practicable but in no event later than three Business Days before
filing such registration statement, any related prospectus or any amendment or
supplement thereto, other than any amendment or supplement made solely as a
result of incorporation by reference of documents filed with the Commission
subsequent to the filing of such registration statement, the Company shall
furnish to the Holders of the Registrable Securities covered by such
registration statement and the underwriters, if any, copies of all such
documents proposed to be filed, which
<PAGE>
documents shall be subject to the review of such Holders and underwriters; the
Company shall not file any registration statement or amendment thereto or any
prospectus or any supplement thereto (other than any amendment or supplement
made solely as a result of incorporation by reference of documents filed with
the Commission subsequent to the filing of such registration statement) to which
the managing underwriters of the applicable offering, if any, or the Majority
Registered Holders shall have reasonably objected in writing, within two
Business Days after receipt of such documents, to the effect that such
registration statement or amendment thereto or prospectus or supplement thereto
does not comply in all material respects with the requirements of the Securities
Act and specifying in reasonable detail the reasons therefor (provided that the
foregoing shall not limit the right of any Holder whose Registrable Securities
are covered by a registration statement to reasonably object, within two
Business Days after receipt of such documents, to any particular information
that is to be contained in such registration statement, amendment, prospectus or
supplement and relates specifically to such Holder, including without limitation
any information describing the manner in which such Holder acquired such
Registrable Securities and the intended method of distribution of such
Registrable Securities), and if the Company is unable to file any such document
due to the objections of such underwriters or such Holders, the Company shall
use its best efforts to cooperate with such underwriters and Holders to prepare,
as soon as practicable, a document that is responsive in all material respects
to the reasonable objections of such underwriters and Holders;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be necessary to
keep such registration statement continuously effective and current for the
period required by this Agreement to the extent permitted under the Securities
Act; cause each related prospectus to be supplemented by any prospectus
supplement as may be required, and as so supplemented to be filed pursuant to
Rule 424, if required; and otherwise use its best efforts to comply with the
provisions of the Securities Act as may be necessary to facilitate the
disposition of all Registrable Securities covered by such registration statement
during the applicable period and in accordance with the intended method of
disposition by the selling Holders thereof set forth in such registration
statement or such prospectus or prospectus supplement;
(iii) notify the Holders and the managing underwriters, if any, of the
applicable offering (providing, if requested by any such Persons, confirmation
in writing) as soon as practicable after becoming aware of: (A) the filing of
any prospectus or prospectus supplement or the filing or effectiveness (or
anticipated date of effectiveness) of such registration statement or any
post-effective amendment thereto; (B) any request by the Commission for
amendments or supplements to such registration statement or the related
prospectus or for additional information; (C) the issuance by the Commission of
any stop order suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose; (D) the receipt by the
Company of any notification with respect to the suspension of the qualification
or registration (or exemption therefrom) of any Registrable Securities for sale
in any jurisdiction in the United States or the initiation or threatening of any
proceeding for such purposes; or (B) the happening of any event that makes any
statement made in such registration statement or in any related prospectus,
prospectus supplement, amendment or document incorporated therein by reference
untrue in any material respect or that requires the making of any changes in
such
<PAGE>
registration statement or in any such prospectus, supplement, amendment or other
such document so that it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of any prospectus or
supplement in the light of the circumstances under which they were made) not
misleading;
(iv) use its best efforts to obtain at the earliest possible moment
the withdrawal of any order or other action suspending the effectiveness of any
such registration statement or suspending the qualification or registration (or
exemption therefrom) of the Registrable Securities for sale in any jurisdiction;
(v) if reasonably requested by the managing underwriters, if any, of
the applicable offering, or by the Majority Registered Holders, as soon as
practicable incorporate in a prospectus supplement or post-effective amendment
such information as such underwriters or the Majority Registered Holders, as the
case may be, agree should be included therein relating to the sale and offering
of the applicable Registrable Securities, including without limitation
information with respect to the number of Registrable Securities being sold to
any underwriters, the purchase price being paid therefor by any such
underwriters and any other terms of the offering of the Registrable Securities;
and make all required filings of such prospectus supplement or post-effective
amendment as soon as practicable following receipt of notice of the matters to
be incorporated therein;
(vi) as soon as practicable after filing such documents with the
Commission, furnish to the Holders and each of the underwriters, if any, without
charge, at least one manually signed or conformed copy of such registration
statement and any post-effective amendment thereto, including financial
statements and schedules; and as soon as practicable after the request of any
Holder or underwriter, furnish to such Holder or underwriter, as the case may
be, at least one copy of any document incorporated by reference in such
registration statement or in any related prospectus, prospectus supplement or
amendment, together with all exhibits thereto (including those previously
furnished or incorporated by reference);
(vii) deliver to the Holders and to each of the underwriters, if any,
without charge, as many copies of the prospectus or prospectuses (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
may reasonably request; subject to Section 5(b)(i), the Company consents to the
use of any such prospectus or any amendment or supplement thereto by the Holders
and the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by any such prospectus or any amendment or
supplement thereto;
(viii) prior to any public offering of Registrable Securities,
register or qualify, or obtain an exemption therefrom (with the cooperation of
the Holders, the underwriters, if any, and their respective counsel in
connection therewith to the extent necessary) of, such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
in the United States as the Holders or the underwriters, if any, shall
reasonably request in writing; use its best efforts to keep each such
registration or qualification (or exemption therefrom) effective
<PAGE>
during the period during which such registration statement is required to be
kept effective pursuant to this Agreement, to the extent permitted under the
Securities Act; and do any and all other acts and things reasonably necessary or
advisable to facilitate the disposition in such jurisdictions of the Registrable
Securities covered by such registration statement; provided that the Company
shall not be required to qualify to do business in any jurisdiction where it
would not be required so to qualify but for this Section 5(a)(viii);
(ix) cooperate with Holders participating in such registration and the
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be sold; and enable such
Registrable Securities to be in such denominations and registered in such names
as the underwriters, if any, may request at least two Business Days prior to any
sale of Registrable Securities to the underwriters;
(x) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities in the United States as may be reasonably
necessary to enable the Holders or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xi) as soon as practicable after the occurrence of any event
described in Section 5(a)(iii)(E), prepare a supplement or post-effective
amendment to such registration statement or to the related prospectus or any
document incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, such prospectus shall not contain an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading; if any event described in Section
5(a)(iii)(B) occurs, use its best efforts to cooperate with the Commission to
prepare, as soon as practicable, any amendment or supplement to such
registration statement or such related prospectus and any other additional
information, or to take other action that may have been requested by the
Commission;
(xii) use its best efforts to cause all Common Stock constituting
Registrable Securities covered by such registration statement to be listed on
each securities exchange (or quotation system operated by a national securities
association), if any, on which the Common Stock of the Company is then listed
(or included), if so requested by the Majority Registered Holders or the
underwriters, if any, and enter into customary agreements including, if
necessary, a listing application and indemnification agreement in customary
form, and provide a transfer agent for such Registrable Securities no later than
the effective date of such registration statement; use its best efforts to cause
any other Registrable Securities covered by such registration statement to be
listed (or included) on each securities exchange (or quotation system operated
by a national securities association) on which securities of the same class and
series, if any, are then listed (or included) (or on any exchange or quotation
system on which any Person other than a Holder shall have the right to have
securities of the same class and series, if any, listed or included), if so
requested by the Majority Registered Holders or the underwriters, if any, and
enter into customary agreements including, if necessary, a listing application
and indemnification agreement in customary form, and, if necessary, provide a
transfer agent for such securities no later than the effective date of such
registration statement;
<PAGE>
(xiii) provide a CUSIP number for the Registrable Securities no later
than the effective date of such registration statement;
(xiv) enter into customary agreements (including, in the case of an
underwritten offering, an underwriting agreement in customary form for the
managing underwriters with respect to issuers of similar market capitalization
and reporting and financial histories) and take all such other appropriate
actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities included in such registration
statement and, in the case of an underwritten offering: (A) make representations
and warranties to each Holder of Registrable Securities participating in such
offering and to each of the underwriters, in such form, substance and scope as
are customarily made to the managing underwriters by issuers of similar market
capitalization and reporting and financial histories and confirm the same to the
extent customary if and when requested; (B) obtain opinions of counsel to the
Company addressed to each Holder of Registrable Securities participating in such
offering and to each of the underwriters, such opinions to be in customary form
and covering the matters customarily covered in opinions obtained in
underwritten offerings by the managing underwriters for issuers of similar
market capitalization and reporting and financial histories; (C) use its best
efforts to obtain "comfort" letters from the Company's independent certified
public accountants addressed to each Holder of Registrable Securities
participating in such offering and to each of the underwriters, such letters to
be in customary form and covering matters of the type customarily covered in
"comfort" letters to the managing underwriters in connection with underwritten
offerings by them for issuers of similar market capitalization and reporting and
financial histories; (D) provide, in the underwriting agreement or agency
agreement to be entered into in connection with such offering, indemnification
and contribution provisions and procedures no less favorable than those set
forth in Section 7 with respect to all parties to be indemnified pursuant to
Section 7; and (E) deliver such customary documents and certificates as may be
reasonably requested by the Majority Registered Holders and the managing
underwriters to evidence compliance with clause (A) of this paragraph (xiv) and
with any customary conditions contained in the underwriting agreement entered
into by the Company in connection with such offering;
(xv) in the case of any nonunderwritten offering: (A) obtain an
opinion of counsel to the Company at the time of effectiveness of such
registration statement covering such offering and an update thereof at the time
of effectiveness of any post-effective amendment to such registration statement
(other than by reason of incorporation by reference of documents filed with the
Commission) addressed to each Holder of any Registrable Securities covered by
such registration statement, covering matters that are no more extensive in
scope than would be customarily covered in opinions obtained in underwritten
offerings by issuers with similar market capitalization and reporting and
financial histories; (B) use its best efforts to obtain a "comfort" letter from
the Company's independent certified public accountants at the time of
effectiveness of such registration statement and, upon the request of the
Majority Registered Holders, updates thereof, in each case addressed to each
Holder of Registrable Securities participating in such offering and covering
matters that are no more extensive in scope than would be customarily covered in
"comfort" letters and updates obtained in underwritten offerings by issuers with
similar market capitalization and reporting and financial histories; and (C)
deliver a certificate of a
<PAGE>
senior executive officer of the Company at the time of effectiveness of such
registration statement and, upon the request of the Majority Registered Holders,
updates thereof, such certificates to cover matters no more extensive in scope
than those matters customarily covered in officers' certificates delivered in
connection with underwritten offerings by issuers with similar market
capitalization and reporting and financial histories;
(xvi) make available, for inspection by the Holders of the Registrable
Securities included in such registration, any underwriter participating in any
disposition of Registrable Securities pursuant to such registration statement,
and any attorney, accountant or other representative retained by such selling
Holders or by any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such underwriter, attorney, accountant or other representative
in connection with such registration, provided that no record, document or
property that is subject to a claim of privilege need be made available for
inspection by any Person pursuant to this clause (xvi) if inspection thereof by
such Person could, in the opinion of the Company's counsel, result in the waiver
of such privilege;
(xvii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission relating to such registration and the
distribution of the securities being offered (including, without limitation,
Rule l0b-6, with respect to which the Company shall also use its best efforts
timely to apprise each Holder of any bids and purchases by the Company, and of
any known bids and purchases by each "affiliated purchaser" (as defined in Rule
l0b-6) of the Company, that would in the opinion of the Company be prohibited
under Rule l0b-6 in connection with a "distribution" (as so defined) by such
Holder of securities of the Company) and make generally available to its
security holders earning statements satisfying the provisions of Section 11(a)
of the Securities Act (including Rule 158 thereunder), not later than 60 days
after the end of any 12-month period (or 120 days, if such period is a fiscal
year) commencing at the end of any fiscal quarter in which the Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, or, if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of such registration statement, which earning
statements shall cover such 12-month periods;
(xviii) cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. and in the performance of
any customary or required due diligence investigation by any underwriter,
provided that no record, document or property that is subject to a claim of
privilege need be made available for investigation by any underwriter pursuant
to this clause (xviii) if investigation thereof by such underwriter could, in
the opinion of the Company's counsel, result in the waiver of such privilege;
and
(xix) use its best efforts to effect such registration in the manner
contemplated by this Agreement.
<PAGE>
(b) Holder Procedures.
(i) Each Holder agrees, by acquisition of the Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
described in Section 5(a)(iii) (B), 5(a) (iii) (C), 5(a)(iii)(D) or
5(a)(iii)(E), such Holder shall forthwith discontinue disposition of any
Registrable Securities (but, in the case of an event described in Section
5(a)(iii)(D), in the affected jurisdiction or jurisdictions only) covered by the
affected registration statement or prospectus until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
5(a)(iii) or 5(a)(xi) or until such Holder is (it being agreed by the Company
that the underwriters, if any, shall also be) advised in writing (the "Advice")
by the Company that the use of the applicable prospectus may be resumed. If the
Company shall have given any such notice during a period when a Demand
Registration or Piggyback Registration is in effect, the one-year period
mentioned in Section 2(b) or Section 3(b), as the case may be, shall be extended
by the number of days from and including the date of the giving of such notice
to and including the date when each Holder of Registrable Securities included in
such Registration shall have received the copies of the supplemented or amended
prospectus contemplated by Section 5(a)(iii) or 5(a)(xi) or the Advice, as the
case may be.
(ii) In connection with any underwritten public offering of
Registrable Securities, the managing underwriter of such offering shall be, (A)
in the case of a Demand Registration, a nationally recognized investment banking
firm selected by the Majority Registered Holders and reasonably acceptable to
the Company and (B) in the case of a Piggyback Registration, a nationally
recognized investment banking firm selected by the Company and reasonably
acceptable to the Majority Registered Holders.
6. Registration Expenses.
All expenses incident to the Company's performance of or compliance
with the provisions of this Agreement, including without limitation all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws (including fees and disbursements of counsel in connection with
blue sky qualifications or registrations (or the obtaining of exemptions
therefrom) of the Registrable Securities), printing expenses (including expenses
of printing prospectuses), messenger and delivery expenses, internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), fees and disbursements of its
counsel and its independent certified public accounts (including the expenses of
any special audit or "comfort" letters required by or incident to such
performance or compliance), securities acts liability insurance (if the Company
elects to obtain such insurance), fees and expenses of any special experts
retained by the Company in connection with such Registration, fees and expenses
of other Persons retained by the Company shall be borne by the Company. Each
Holder shall bear the fees and expenses of its counsel, the out-of-pocket
expenses of the Holders incurred in connection herewith and any underwriting
discounts, commissions or fees attributable to the sale of Registrable
Securities included in any Registration.
<PAGE>
7. Indemnification: Contribution.
(a) Indemnification by the Company. The Company shall indemnify, to
the full extent permitted by law, each Holder of Registrable Securities, its
officers, directors, employees and agents, each Person who controls such Holder
(within the meaning of the Securities Act) and any investment adviser thereof or
agent therefor, against all losses, claims, damages, liabilities and expenses
(including costs of investigation and legal expenses) arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in any
registration statement covering any Registrable Securities, any related
prospectus or preliminary prospectus, or any amendment or supplement thereto, or
any omission or alleged omission to state in any thereof a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus or prospectus supplement, in light of the circumstances
under which they were made) not misleading, except in each case insofar, but
only insofar, as the same arises out of or is based upon an untrue statement or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact in such registration statement, prospectus, preliminary
prospectus, amendment or supplement, as the case may be, made or omitted, as the
case may be, in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use therein. This
indemnity is in addition to any liability that the Company may otherwise have.
The Company shall also indemnify any underwriters of the Registrable Securities,
selling brokers, dealer managers and similar securities industries professionals
participating in the distribution and their officers and directors and each
Person who controls such underwriters or other Persons (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of Holders and other specified Persons.
(b) Indemnification by Holders of Registrable Securities. In
connection with any registration statement covering Registrable Securities, each
Holder any of whose Registrable Securities are covered thereby shall furnish to
the Company in writing such information and affidavits with respect to such
Holder as the Company reasonably requests for use in connection with such
registration statement, any related prospectus or preliminary prospectus, or any
amendment or supplement thereto, and shall indemnify, to the full extent
permitted by law, the Company, the Company's directors, officers, employees and
agents, each Person who controls the Company (within the meaning of the
Securities Act) and any investment adviser thereof or agent therefor, against
all losses, claims, damages, liabilities and expenses (including costs of
investigation and legal expenses) arising out of or based upon any untrue or
alleged untrue statement of a material fact contained in any registration
statement covering any Registrable Securities, any related prospectus or
preliminary prospectus, or any amendment or supplement thereto, or any omission
or alleged omission to state in any thereof a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus or prospectus supplement, in light of the circumstances under which
they were made) not misleading, in each case to the extent, but only to the
extent, that the same arises out of or is based upon an untrue statement or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact in such registration statement or in such related
prospectus, preliminary prospectus, amendment or supplement, as the case may be,
made or omitted, as the case may be, in reliance upon and in conformity with
written information
<PAGE>
furnished to the Company by such Holder expressly for use therein.
Notwithstanding any other provision hereof, in no event shall the
indemnification obligation of any Holder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such obligation.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification under this Section 7 agrees to give prompt written notice to the
indemnifying party after the receipt by such Person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such Person will claim indemnification or contribution
pursuant to this Agreement and, unless in the judgment of such indemnified party
a conflict of interest may exist between such indemnified party and the
indemnifying party with respect to such claim, permit the indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to such
indemnified party (which may be regular counsel to the Company). If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it shall not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim, unless in the judgment of counsel to such
indemnified party, expressed in a writing delivered to the indemnifying party, a
conflict of interest may exist between such indemnified party and any other
indemnified party with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels (which shall be limited to one counsel per indemnified party). The
indemnifying party shall not be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld or
delayed.
(d) Contribution.
(i) If the indemnification provided for in this Section 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 7(c), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(ii) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by any other
<PAGE>
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding any other
provision hereof, in no event shall the contribution obligation of any Holder be
greater in amount than the excess of (A) the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such contribution obligation over (B) the dollar amount of any damages that
such Holder has otherwise been required to pay by reason of the untrue or
alleged untrue statement or omission or alleged omission giving rise to such
obligation. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
(iii) If any provision of an indemnification or contribution clause in
an underwriting agreement or agency agreement executed by or on behalf of a
Holder of Registrable Securities in accordance with Section 5(a)(xiv)(D) differs
from a provision in this Section 7, such provision in the underwriting agreement
shall determine such Holder's rights in respect thereof.
8. Participation in Underwritten Registrations
No Person may participate in any underwritten Registration unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements, (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and (c) agrees to pay
such Person's pro rata portion of all underwriting discounts and commissions.
9. Cooperation with the Company.
Each Holder by the acceptance of Registrable Securities agrees to use its
best efforts to cooperate with the Company in all reasonable respects in
connection with the preparation and filing of Registrations hereunder in which
such Registrable Securities are included or requested to be included.
10. Miscellaneous.
(a) Modifications in Connection with a Qualifying Offering. In connection
with the consummation of a Qualifying Offering (as such term is defined in the
Purchase Agreement), the registration rights provided hereunder shall be
modified to the extent determined in the reasonable judgment of the Company's
financial advisor to be reasonably necessary to permit consummation of the
Qualifying Offering on the terms most favorable to the Company; provided,
however, that the registration rights granted to the investors in the Qualifying
Offering shall not be more favorable than those granted to the Holders hereunder
(as so modified) without the approval of the Holders of at least a majority of
the Registrable Securities then outstanding. The Holders shall have the right to
participate in discussions with such financial advisor regarding any proposed
change in the terms of this Agreement. The Holders shall execute and deliver
appropriate amendments or supplements to this Agreement necessary to effect any
such modification.
<PAGE>
(b) Remedies. Each Holder of Registrable Securities, in addition to being
entitled to exercise all rights in an action at law, including recovery of
damages, shall be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company shall have obtained the prior written consent of the Holders
of at least a majority of the securities then constituting Registrable
Securities.
(d) Notices. All notices, requests, waivers, releases, consents, and other
communications required or permitted by this Agreement (collectively, "Notices")
shall be in writing. Notices shall be deemed sufficiently given for all purposes
under this Agreement when delivered in person, when dispatched by telegram or
(upon written confirmation of receipt) by electronic facsimile transmission or
(upon written confirmation of receipt) when dispatched by a nationally
recognized overnight courier service. All Notices shall be delivered as follows:
(i) if to a Holder of Registrable Securities, at the address indicated
on Company's registrar relating to such securities or at such other address
as such Holder may have furnished to the Company in writing; and
(ii) if to the Company, at:
LogiMetrics, Inc.
50 Orville Drive
Bohemia, New York 11716
Attention: President
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
including any successors to the Company by merger.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings: Construction. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Unless the context otherwise requires, all references to
Sections are to Sections of this Agreement, "or" is inclusively disjunctive, and
words in the singular include the plural and vice versa. In computing any period
<PAGE>
of time specified in this Agreement or in any Notices, the date of the act or
event from which such period of time is to be measured shall be included, any
such period shall expire at 5:00 p.m., New York City time, on the last day of
such period, and any such period denominated in months shall expire on the date
in the last month of such period that has the same numerical designation as the
date of the act or event from which such period is to be measured; provided,
however, that if there is no date in the last month of such period that has the
same numerical designation as the date of such act or event, such period shall
expire on the last day of the last month of such period.
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of laws thereof.
(i) Severability. If one or more of the provisions hereof, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect, for any reason, the validity, legality and
enforceability of the remaining provisions hereof shall not be in any way
affected or impaired thereby, and the provision held to be invalid, illegal or
unenforceable shall be reformed to the minimum extent necessary, and in a manner
as consistent with the purposes thereof as is practicable, so as to render it
valid, legal and enforceable, it being intended that all of the rights and
privileges of the Holders hereunder shall be enforceable to the fullest extent
permitted by law.
(j) Entire Agreement. This Agreement is intended by the Company and the
Purchasers to be a final expression thereof and is intended to be a complete and
exclusive statement of the agreement and understanding of the Company and the
Purchasers in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the Company and any Holders with respect to such subject
matter.
[Remainder of page intentionally left blank]
<PAGE>
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/Norman M. Phipps
_______________________________
Name: Norman M. Phipps
Title: President
/s/Steven Dinetz
_____________________________________
Steven Dinetz
1034 Skyland Drive
Zephyr Cove, Nevada 89448
Tel: (702) 588-0343
(702) 588-1433
/s/Gerald B. Cramer
___________________________________
Gerald B. Cramer
/s/Edward J. Rosenthal
___________________________________
Edward J. Rosenthal, Keogh
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM 1998 ENTERPRISE FUND, LLC
By: Cramer Rosenthal McGlynn, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor, III
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
A.C. ISRAEL ENTERPRISES, INC.
By: /s/Jay Howard
_______________________________
Name: Jay Howard
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM-EFO PARTNERS, L.P.
By: CRM-EFO Investments, LLC,
Its General Partner
By: CRM Management, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor, III
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
______________________________
Richard S. Fuld
By: Cramer Rosenthal McGlynn, Inc.,
Attorney-in-Fact
By: /s/Eugene A. Trainor
___________________________
Name: Eugene A.Trainor, III
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
PAMELA EQUITIES CORP.
By: /s/Gregory Manocherian
_______________________________
Name: Gregory Manocherian
Title: Vice President
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
WHITEHALL PROPERTIES, LLC
By: /s/Gregory Manocherian
__________________________
Name: Gregory Manocherian
Title: Manager
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
KABUKI PARTNERS ADP, GP
By: /s/Gregory Manocherian
__________________________
Name: Gregory Manocherian
Title: General Partner
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
<PAGE>
McGLYNN FAMILY PARTNERSHIP
By: /s/Ronald H. McGlynn
_______________________________
Name: Ronald H. McGlynn
Title: General Partner
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Fred M. Filoon
_____________________________
Fred M. Filoon
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Eugene A. Trainor
_____________________________
Eugene A. Trainor, III
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Charles S. Brand
_____________________________
Charles S. Brand
20 Meridian Way
Eatontown, New Jersey 07724
Tel: (732) 935-7150
Fax: (732) 935-7151
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated as of July 29, 1997, by and among
LogiMetrics, Inc., a Delaware corporation (the "Company"), Charles S. Brand
("Brand"), and the other individuals and entities listed on the signature pages
hereto (the "Purchasers" and, collectively with Brand and each other Person who,
in accordance with the terms hereof, shall become a party to or be bound by the
terms of this Agreement after the date hereof, the "Stockholders").
W I T N E S S E T H:
WHEREAS, Brand currently is the beneficial owner of 19,387,800 shares of
Common Stock, par value $.01 per share, of the Company (the "Common Stock"); and
WHEREAS, the Purchasers beneficially own an aggregate of 700,000 shares of
Common Stock; and
WHEREAS, pursuant to the terms of a Purchase Agreement, dated as of even
date herewith (the "Purchase Agreement"), by and among the Company and the
Purchasers, the Purchasers have acquired or will shortly acquire beneficial
ownership of an additional 15,600,000 shares of Common Stock in the aggregate;
and
WHEREAS, under the terms of the Purchase Agreement, the Purchasers have the
right to acquire beneficial ownership of an additional 4,500,000 shares of
Common Stock; and
WHEREAS, the Company and the Stockholders desire to make provision with
respect to (i) the ownership, transfer or other disposition of their equity
interests in the Company, and (ii) the management of the affairs of the Company;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and intending to be legally bound, the parties hereby agree as follows:
ARTICLE I
Certain Definitions
Section 1.1 Certain Definitions. As used in this Agreement, the following
terms have the respective meanings set forth below.
"Affiliate" means, with respect to any Person, any other Person who
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlled" and
<PAGE>
"controlling" have meanings correlative thereto. Any Relative of an individual
shall be deemed to be an Affiliate of such individual for purposes hereof.
"Beneficial owner" (and, with correlative meanings, "beneficially own" and
"beneficial ownership") of any interest means a Person who, together with his,
her or its Affiliates, is or may be deemed a beneficial owner of such interest
for purposes of Rule 13d-3 or 13d-5 under the Securities Exchange Act of 1934,
as amended, or who, together with his, her or its Affiliates, has the right to
become such a beneficial owner of such interest (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise, conversion or
exchange of any warrant, right or other instrument, or otherwise.
"Board" means the Board of Directors of the Company in office at the
applicable time, as elected in accordance with the provisions of this Agreement.
"Company Sale" means any of (i) a Transfer or other disposition of all or
substantially all of the assets of the Company to any Person, or group of
related Persons, other than an Affiliate 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 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
(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 a Stockholder 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, or (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.
"Contract" means any written or oral agreement, contract, arrangement or
instrument.
"Person" means an individual, partnership, corporation, joint stock
company, unincorporated organization or association, trust or joint venture, or
a governmental agency or political subdivision thereof.
"Purchaser Group" means, collectively, the Purchasers and all Purchaser
Transferees (as defined in Section 2.1(f)).
<PAGE>
"Relative" means, with respect to any Stockholder, the spouse of such
Stockholder or any of such Stockholder's ancestors, descendants, siblings,
descendants of any such siblings, or the spouse of any of the foregoing
"Right" means any option, warrant, security, right or other instrument
convertible into or exchangeable or exercisable for or otherwise giving the
holder thereof the right to acquire, directly or indirectly, any Common Stock or
any other such option, warrant, security, right or instrument.
"Shares" means shares of Common Stock.
"Subsidiary" means any corporation, association or other organization
whether incorporated or unincorporated of which at least a majority of the
securities or interests having by the terms thereof ordinary voting power to
elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization is at the time
directly or indirectly owned or controlled by another corporation, association
or other organization, or by any one or more Subsidiaries of such other
corporation, association or other organization, or by such other corporation,
association or other organization and one or more of its Subsidiaries.
"Transfer" means, directly or indirectly, any transfer, sale, assignment,
pledge, hypothecation, gift, or other transfer or disposition, whether or not by
operation of law and whether or not voluntarily, of any Shares or any interest
therein.
Section 1.2. Interpretation. Unless otherwise indicated to the contrary
herein by the context or use thereof: (i) the words, "herein," "hereto,"
"hereof" and words of similar import refer to this Agreement as a whole and not
to any particular Section or paragraph hereof; (ii) words importing the
masculine gender shall also include the feminine and neutral genders, and vice
versa; and (iii) words importing the singular shall also include the plural, and
vice versa.
ARTICLE II
Restrictions on Certain Transfers
Section 2.1. Tag-Along. (a) Except as set forth in paragraphs (f) and (g)
below, no Stockholder (an "Initiating Stockholder"), whether acting alone or in
concert with any other Stockholder, shall enter into a Contract to Transfer,
arrange for the Transfer of or Transfer to any Person or group (as defined
pursuant to Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as
amended), directly or indirectly or through one or more intermediaries, in a
single transaction or a series of related transactions, any Shares then
beneficially owned by the Initiating Stockholder or any interest therein, if
immediately following the consummation of such Transfer, such acquiring Person
or group, together with any Affiliates thereof (or Affiliate of any member of
such group), would be the beneficial owner, directly or indirectly, of more than
50% of the outstanding Shares (including as outstanding for such purpose any
Shares issuable upon exercise of any Rights to be acquired from such Initiating
Stockholder and all other Rights beneficially
<PAGE>
owned by any such Affiliate, Person, group or member thereof), unless all
Stockholders are given the opportunity to Transfer all (but not less than all)
of the Shares then owned by each of them (including without limitation Shares
issuable upon exercise of Rights then owned by each of them) concurrently with
such proposed Transfer on terms (including, without limitation, the form and
amount of, and the time of receipt of, consideration therefor) identical to
those applicable to such proposed Transfer (the "Tag-Along Rights").
(b) No opportunity shall be deemed given to any Stockholder for purposes of
Section 2.1(a) unless (i) such Stockholder shall have received written notice
from the Initiating Stockholder setting forth the material terms of the proposed
Transfer (a "Tag-Along Notice"), and shall have been given at least twenty days
after receipt of such Tag-Along Notice to exercise its rights contained in this
Section 2.1 by giving written notice thereof to the Initiating Stockholder (a
"Tag-Along Exercise Notice"), (ii) if such Stockholder is then the holder of any
Rights, it shall be permitted to exercise, convert or exchange such Rights
strictly in accordance with the terms thereof, (iii) the terms on which the
Initiating Stockholder actually sells its Shares are no more favorable to the
Initiating Stockholder (including, without limitation, the form and amount of,
and the time of receipt of, consideration therefor), than the terms set forth in
the Tag-Along Notice given by it pursuant to clause (i) of this sentence, (iv)
the Person or group to which the applicable Transfer is proposed to be made
makes an offer to all of the Stockholders to purchase any or all outstanding
Shares then owned by the Stockholders (including Shares issuable upon the
exercise, conversion or exchange of Rights) that (A) is distributed in writing
to all Stockholders, (B) is open for acceptance by all Stockholders for a period
of at least twenty business days after such distribution, and (C) provides for
per Share consideration identical to that being paid in the Transfer to each
Stockholder who accepts such offer, and (v) the Person or group to which the
Initiating Stockholder Transfers its Shares purchases, at or prior to the time
of purchase of such Shares, from each Person exercising his or its rights
pursuant to this Section 2.1, at least such number of Shares as such Person
shall specify in the notice given by such Person pursuant to clause (i) of this
sentence.
(c) The Initiating Stockholder and any proposed Transferee shall have the
right, in their sole discretion, at all times prior to consummation of any
proposed Transfer, to abandon any such proposed Transfer whereupon all Tag-Along
Rights with respect to such proposed Transfer shall terminate, and neither the
Initiating Stockholder nor any proposed Transferees shall have any liability or
obligation to any Stockholder with respect thereto.
(d) In determining the consideration paid for purposes hereof, the
aggregate purchase price shall be increased to the extent that the Initiating
Stockholder or its Affiliates shall receive additional consideration (i) for
covenants against competition, or (ii) for services (such as pursuant to
management or consulting agreements) in amounts in excess of amounts which would
be payable to a third party in an arms' length transaction.
(e) If any Stockholder does not timely deliver a Tag-Along Exercise Notice,
such Stockholder will be deemed to have waived its rights with respect to the
proposed Transfer described in the Tag-Along Notice and the Initiating
Stockholder shall have 60 days after the expiration date for the delivery of
such Tag-Along Exercise Notice in which to Transfer not more
<PAGE>
than the number of Shares described in the Tag-Along Notice on terms not more
favorable to the Initiating Stockholder than were set forth in the Tag-Along
Notice. If, at the end of such 60-day period, the Initiating Stockholder has not
completed the Transfer of its Shares in accordance with the terms described in
the Tag-Along Notice, then all of the restrictions on sale or other disposition
contained in this Agreement with respect to Shares beneficially owned by the
Initiating Stockholder shall again be in effect.
(f) The provisions of this Section 2.1 shall not apply to any Transfer (x)
by any Purchaser that is an individual (an "Individual Purchaser") or a
Purchaser Transferee (as defined below) that is an individual (an "Individual
Transferee"), by inter vivos gift, qualified domestic relations order,
testamentary bequest or otherwise, with or without consideration, of any Shares
which the Individual Purchaser or such Individual Transferee may now or at any
time hereafter own to (i) a trust for the benefit of such Individual Purchaser
or such Individual Transferee, as applicable, or for one or more of such
Individual Purchaser's or such Individual Transferee's Relatives, as applicable,
or (ii) to one or more of such Individual Purchaser's or such Individual
Transferee's Relatives, as applicable, or (y) with or without consideration, by
any Purchaser or a Purchaser Transferee of any Shares which such Person may now
or at any time hereafter own to any other Purchaser, or any Affiliate of any
Purchaser; provided, however, that any such Transferee pursuant to either clause
(x) or clause (y) (a "Purchaser Transferee") shall expressly agree in writing in
an instrument satisfactory to the Company to be bound by the terms of this
Agreement. Any Shares, or any interest therein, Transferred pursuant to this
clause (f) shall continue to be subject to the terms of this Agreement.
(g) The provisions of this Section 2.1 shall not apply to any Transfer by
Brand or a Brand Transferee (as defined below), by inter vivos gift, qualified
domestic relations order, testamentary bequest or otherwise, with or without
consideration, of any Shares which Brand or such Brand Transferee may now or at
any time hereafter own to (i) a trust for the benefit of Brand or such Brand
Transferee, as applicable, or for one or more of Brand's or such Brand
Transferee's Relatives, as applicable, or (ii) to one or more of Brand's or such
Brand Transferee's Relatives, as applicable; provided, however, that any such
Transferee (a "Brand Transferee") shall expressly agree in writing in an
instrument satisfactory to the Company to be bound by the terms of this
Agreement. Any Shares, or any interest therein, Transferred pursuant to this
clause (g) shall continue to be subject to the terms of this Agreement.
Section 2.2. Go-Along Obligations. (a) Subject to the provisions of Section
2.2(c), if at any time after the date hereof, any member of the Purchaser Group
receives a firm, bona fide, written offer from a third party (an "Offeror") to
purchase or otherwise acquire all of the Shares beneficially owned by the
Purchaser Group in one transaction or series of related transactions, and the
holders of a majority of the Shares beneficially owned by all of the members of
the Purchaser Group (the "Majority Holders") have determined to accept such
offer, then, notwithstanding the other provisions of this Agreement, the
Majority Holders shall have the right (the "Go-Along Right") to require all
other Stockholders to sell or otherwise dispose of all Shares beneficially owned
by them to such Offeror on the same terms and conditions set forth in such
offer. In determining the consideration to be paid pursuant to such offer, the
aggregate purchase price for the Shares to be sold by the Purchaser Group shall
be increased to the extent that any member of
<PAGE>
the Purchaser Group or their respective Affiliates shall receive additional
consideration (i) for covenants against competition, or (ii) for services (such
as pursuant to management or consulting agreements) in amounts in excess of
amounts which would be payable to a third party in an arms' length transaction.
(b) If the Majority Holders elect to exercise their Go-Along Rights
hereunder, they shall provide written notice (the "Go-Along Notice") to the
Company and each other Stockholder of such election at least 20 days prior to
the closing date for such transaction, which Go-Along Notice shall include the
terms and conditions of such offer, the name of the Offeree and the proposed
closing date of such transaction. Each other Stockholder shall be obligated to
sell or otherwise dispose of all Shares beneficially owned by it to such Offeror
in accordance with the terms set forth in the Go-Along Notice. However, if such
transaction is not completed within 90 days of the giving of such Go-Along
Notice, then any exercise by the Majority Holders of their Go-Along Right shall
require a new notice pursuant to this Section 2.2.
(c) Notwithstanding the other provisions of this Section 2.2, no
Stockholder shall be required to Transfer its Shares pursuant to this Section
2.2 unless the consideration to be received by the Stockholders in exchange for
the Shares to be Transferred to the Offeror pursuant to such transaction shall
have been determined to be fair to the Stockholders pursuant to a written
fairness opinion issued by an investment banking firm selected by the Company's
Board of Directors with the concurrence of (x) the holders of a majority of the
Shares then owned by Brand and any Brand Transferees, as a group, and (y) the
Majority Holders.
Section 2.3. Additional Transfer Restrictions. Without the prior approval
of the Majority Holders, which approval shall not be unreasonably withheld or
delayed, neither Brand nor any Brand Transferee, whether acting alone or in
concert with any other Person, shall enter into a Contract to Transfer, arrange
for the Transfer of or Transfer to any Person or group (as defined pursuant to
Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as amended)
(other than to Brand or a Brand Transferee), directly or indirectly or through
one or more intermediaries, in a single transaction or a series of related
transactions, any Shares then beneficially owned by Brand or such Brand
Transferee or any interest therein, if immediately following the consummation of
such Transfer, such acquiring Person or group, together with any Affiliates
thereof (or Affiliate of any member of such group), would be the beneficial
owner, directly or indirectly, of 20% or more of the outstanding Shares
(including as outstanding for such purpose any Shares issuable upon exercise of
any Rights to be acquired from Brand or a Brand Transferee in such transaction
and all other Rights beneficially owned by any such Affiliate, Person, group or
member thereof). For purposes of this Section 2.3, the Majority Holders shall be
deemed to have approved a Transfer pursuant to this Section 2.3 if Brand or the
Brand Transferee, as the case may be, gives written notice to the Purchasers of
his, its or their intention to make a Transfer pursuant to this Section 2.3,
which notice shall include the terms and conditions of such Transfer, the names
of the proposed acquiring Person or group and the proposed closing date of such
Transfer, and Brand or the Brand Transferee, as the case may be, shall not have
received within 10 days thereafter a written notice from the Majority Holders
objecting to the proposed Transfer.
<PAGE>
ARTICLE III
Board of Directors; Committees
Section 3.1. Composition of the Board of Directors. (a) Subject to the
provisions of Section 3.1(b) and 3.1(d), the Company shall use its best efforts
to, and each Stockholder shall, take and cause to be taken all necessary action
(corporate and other), including the voting of Shares, to set the number of
directors at seven and to elect as the members of the Board four individuals
(the "Brand Directors") selected and nominated from time to time by Brand
(provided that such individuals shall be reasonably satisfactory to a majority
of the directors appointed by the Purchaser Group) and three individuals (the
"Purchaser Directors") selected and nominated from time to time by the Purchaser
Group, by action of the Majority Holders (provided that such individuals shall
be reasonably satisfactory to a majority of the Brand Directors); provided,
however, that in the event that the Purchaser Group acquires all of the
Additional Securities (as defined in the Purchase Agreement) pursuant to the
terms of Section 1.4 of the Purchase Agreement, the number of directors shall be
set at eight and the Purchaser Group shall have the right from and after the
Option Closing Date (as defined in the Purchase Agreement) to appoint a fourth
Purchaser Director; provided, further, that if any member of the Purchaser Group
is ever entitled to appoint a member of the Board pursuant to the rights granted
by the Company to the holders of the Cerberus Debentures (as such term is
defined in the Purchase Agreement) as a result of the purchase of the Cerberus
Debentures or otherwise, the size of the Board and the number of directors which
the Purchaser Group shall have the right to appoint pursuant to the terms hereof
shall be reduced by one. At any time during which the Purchaser Group is
entitled to appoint at least four Purchaser Directors pursuant to the provisions
of this Section 3.1(a), at the request of either Brand or the Majority Holders,
the size of the Board shall be increased by one and Brand and the Purchaser
Group, by action of the Majority Holders, shall mutually select one additional
director who shall not be employed by or otherwise be an Affiliate of either the
Company, Brand or any member of the Purchaser Group (the "Independent Director")
to fill the vacancy caused by such increase in the size of the Board.
(b) In the event that Cerberus Partners, L.P. ("Cerberus") or any other
holder of the Cerberus Debentures (Cerberus or such holder, the "Debenture
Holder") exercises its right to appoint a member of the Board pursuant to the
terms of the Unit Purchase Agreement, dated as of March 7, 1996 (the "Cerberus
Agreement"), by and between the Company and Cerberus, the number of directors
shall be increased by two, one of such additional directors shall be the
director appointed by the Debenture Holder (the "Debenture Director") and Brand
and the Purchaser Group, by action of the Majority Holders, shall mutually
select one additional Independent Director to fill the vacancies caused by such
increase in the size of the Board. Each Stockholder shall use its best efforts
to cause the Company to comply with the requirements of the Cerberus Agreement,
including without limitation, voting all of their Shares in favor of the
election of such person as the Debenture Holder may designate as a director of
the Company. In the event that the Debenture Director resigns, is removed or
otherwise is unable to continue to serve as a director of the Company and the
Debenture Holder does not exercise its right to
<PAGE>
appoint a successor Debenture Director, one Independent Director to be mutually
selected by Brand and the Majority Holders shall be deemed to have resigned as a
director effective as of the date that the Debenture Holder notifies the Company
that it will not exercise its rights under the Cerberus Agreement and shall
cease to be a member of the Board of Directors.
(c) The term of office of all directors shall continue until the next
succeeding annual meeting of stockholders of the Company and until their
successors are duly elected and qualified. Each of Brand and the Purchaser Group
shall at all times have the right, exercisable by such Person in his or its sole
discretion, to designate successors for the directors appointed by such Person
(provided that such successors shall be reasonably satisfactory to a majority of
the Purchaser Directors or the Brand Directors, as the case may be), to cause
the Stockholders to remove, with or without cause, one or more of the directors
appointed by such Person, and to fill any vacancy on the Board resulting from
the death, resignation or removal of any director appointed by such Person
(provided that any nominee selected to fill such a vacancy shall be reasonably
satisfactory to a majority of the Brand Directors or the Purchaser Directors, as
the case may be); provided, however, that no such actions may be taken with
respect to any Independent Director unless mutually agreed to by Brand and the
Purchaser Group and; provided, further, that any Independent Director shall be
reasonably satisfactory to a majority of both the Brand Directors and the
Purchaser Directors. Each Stockholder shall vote for such removal and for the
election of such successor or successors 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, in each case, at the
written request of the Person seeking to remove and replace such director given
to the Company.
(d) The permanent successor Chief Executive Officer hired pursuant to
Section 4.4 hereof shall become a member of the Board effective as of the
effective date of his or her employment by the Company (the "Commencement Date")
and shall be deemed to be a Brand Director for all purposes hereunder. On or
prior to the Commencement Date, Brand and any Brand Transferees shall take all
action reasonably necessary to cause a Brand Director to resign from the Board
effective as of the Commencement Date and to appoint the permanent Chief
Executive Officer to fill the vacancy created by such resignation.
(e) In the event that either Brand or the Purchaser Group is no longer
entitled to designate directors pursuant to this Article III, all directors
designated by such Person (other than the permanent Chief Executive Officer
hired pursuant to Section 4.4 hereof) shall be deemed to have resigned as
directors effective immediately and shall cease to be members of the Board.
(f) The participation of any former director in the deliberations of the
Board subsequent to the date of his or her termination as a director shall not
affect in any respect any corporate action which has been approved by a majority
of the remaining members of the Board, whether at a meeting at which a quorum of
the Board (excluding any such former director) was present or pursuant to a
written consent signed by the remaining directors.
Section 3.2. Quorum. At all meetings of the Board, the presence, in person
or by proxy, of a majority of the entire Board shall constitute a quorum for the
transaction of business. Any
<PAGE>
director may participate in a meeting of the Board, or any committee thereof, by
means of conference telephone or similar communications equipment by means of
which all Persons participating in the meeting can hear each other.
Section 3.3 Composition of Board Committees. Promptly following the
execution and delivery of this Agreement, the Stockholders shall take and shall
cause their respective director designees to take all actions necessary and
advisable to (i) cause the Executive Committee of the Board (the "Executive
Committee") to be comprised of two Brand Directors to be designated from time to
time by Brand (one of whom shall be the chairman of the committee) and one
Purchaser Director to be designated from time to time by the Purchaser Group;
provided, however, that from and after the Option Closing Date, the size of the
Executive Committee shall be increased by one and the Purchaser Group shall have
the right to designate a second Purchaser Director to be a member of the
Executive Committee, and; provided, further, that from and after the
Commencement Date, the size of the Executive Committee shall be further
increased by one and the permanent Chief Executive Officer of the Company shall
become a member of the Executive Committee, ex officio, (ii) cause the
Compensation Committee of the Board to be comprised of two Brand Directors to be
designated from time to time by Brand and two Purchaser Directors to be
designated from time to time by the Purchaser Group, and (iii) cause the Audit
Committee of the Board to be comprised of two Brand Directors to be designated
from time to time by Brand and two Purchaser Directors to be designated from
time to time by the Purchaser Group.
Section 3.4. Action by Stockholders to Reconstitute Board of Directors or
Committees Thereof. If at any time and for any reason the Board shall fail to be
constituted as required by this Article III, then, at the request of any
Stockholder, the Company shall cause a special meeting of stockholders to be
held or the Stockholders shall act by written consent of stockholders without a
meeting for the purpose of taking whatever action may be necessary to assure
that the Board is constituted as set forth in this Article III as promptly as
practicable. If at any time and for any reason the committees of the Board shall
fail to be constituted as required by this Article III, then, at the request of
any Stockholder, the Company and the Stockholders shall take whatever action may
be necessary to assure that such committees are constituted as set forth in this
Article III as promptly as practicable.
Section 3.5. Certain Covenants. Each Stockholder shall vote, in person or
by proxy, all Shares over which it 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 nominated in accordance with
Section 3.1 and in favor of the removal of any director who is required to be
removed pursuant to Section 3.1 and to take all other necessary and appropriate
actions 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 Stockholder
shall vote all Shares over which it may have or share voting power and shall
take all other actions necessary and appropriate (including, without limitation,
removing any director) to ensure that the Company's Certificate of Incorporation
and by-laws contain all provisions necessary to implement
<PAGE>
the terms of this Agreement and 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.
ARTICLE IV
Other Corporate Matters
Section 4.1. Management of the Company; Certain Actions. (a) The business
and affairs of the Company shall be managed by or under the direction of the
Board, subject to the provisions set forth in this Section 4.1 and Section 4.2.
(b) Subject to oversight and control by the Board, the senior management of
the Company shall have the right to manage the day to day operations of the
Company, including, without limitation, the implementation of the Company's
strategic and business plans, ordinary course dealings with customers and
suppliers, the hiring and firing of officers and employees of the Company and
its Subsidiaries, and the ordinary course operation of the Company's business as
it is currently being conducted, and neither any member of the Purchasers nor
the Purchaser Directors shall take any action, directly or indirectly, which may
reasonably be expected to hinder, impede, interfere with or otherwise restrict
the management of the Company's affairs as aforesaid.
(c) In the event that a majority of the Purchaser Directors (a "Purchaser
Majority") recommend to the Board that the Company enter into a Company Sale,
Brand and any Brand Transferees shall use their respective best efforts to cause
the Brand Directors to vote in favor of such Company Sale; provided, however,
that neither Brand nor any Brand Transferee shall have any obligation to cause
the Brand Directors to vote in favor of a Company Sale if counsel of recognized
standing advises the Brand Directors that approval of the Company Sale
recommended by the Purchaser Directors would result in a breach of fiduciary
duty by the Brand Directors.
Section 4.2. Actions Requiring Purchaser Approval. The Company shall not,
and no officer of the Company shall have the power or authority to cause the
Company to, without the consent of a Purchaser Majority:
(a) redeem, repurchase or otherwise acquire shares of the
Company's capital stock except pursuant to or in connection with (i)
the conversion of any class or series of the Company's capital stock
into another security of the Company, (ii) the exercise of any Right,
(iii) the redemption, at the request of the holder thereof, of shares
of any class or series of capital stock that is redeemable at the
option of the holder thereof, (iv) any compensatory plan or
arrangement with an officer, director or employee of the Company or
its Subsidiaries; provided, however, that such plan or arrangement has
been approved by the Board or the Compensation Committee thereof; or
<PAGE>
(b) take any voluntary action in furtherance of the liquidation,
dissolution or winding up of the business of the Company.
Section 4.3. Voting by Stockholders. Each Stockholder shall vote, in person
or by proxy, all Shares over which it may have or share voting power, at any
annual or special meeting of stockholders of the Company (i) in favor of all
matters approved by a majority of the entire Board (or a majority of all of the
members of any duly constituted committee thereof) pursuant to Section 4.1(a),
(ii) in favor of all matters approved by the entire Board upon the
recommendation of a Purchaser Majority pursuant to Section 4.1(c) or Section
4.2, and (iii) against all matters not approved by the Board or a duly
constituted committee thereof pursuant to clauses (i) or (ii).
Section 4.4. Executive Search. Promptly following the execution and
delivery hereof, the Board shall establish an ad hoc committee of the Board (the
"Search Committee"), the members of which shall include the Company's Chief
Executive Officer (who shall be the chairman), the Company's Chief Operating
Officer and two Purchaser Directors, which shall promptly commence a search for
a suitably qualified permanent successor to the Chief Executive Officer. The
Search Committee may establish such regulations for its operations as the
members thereof may determine are necessary or advisable. Without limiting the
generality of the foregoing, the Search Committee shall be authorized to engage
such consultants and other agents to assist in the identification and evaluation
of appropriate candidates as the members thereof deem necessary or advisable.
The Search Committee shall report to the Board on its activities from time to
time as events warrant. Following the completion of its initial screening
process and interviews with appropriate candidates, the Search Committee shall
recommend one or more finalists to the Board and, with consultation from the
Board, shall complete all arrangements relating to the hiring of a new Chief
Executive Officer from the list of finalists; provided, however, that such new
Chief Executive Officer shall be approved by Brand, which approval may be
withheld by Brand in his sole and absolute discretion. The terms and conditions
of any such hiring shall be approved by the Board upon the advice and with the
recommendation of Compensation Committee of the Board. In the event that the
permanent Chief Executive Officer ceases to serve as the Chief Executive Officer
of the Company for any reason, then, for purposes of this Agreement (including,
without limitation, the Board and Board committee composition provisions
hereof), the Company shall be deemed to have not designated a permanent
successor Chief Executive Officer and the provisions of this Section 4.4 shall
again come into effect.
Section 4.5. Indemnification; Maintenance of D&O Insurance. The Company
shall indemnify the directors and officers of the Company to the fullest extent
permissible under Delaware law and, without limiting the generality of the
foregoing, the Company and the Stockholders shall take all actions necessary to
include provisions in the Company's Certificate of Incorporation limiting the
liability of directors to the maximum extent permitted by Delaware law and
providing that the directors and officers shall be indemnified to the maximum
extent permitted by Delaware law. The Company shall maintain appropriate
directors and officers insurance in such amounts and covering such risks as the
Board may determine from time to time in light of the cost and availability of
such insurance.
<PAGE>
ARTICLE V
Legend
Section 5.1. Legends. Any certificates evidencing Shares subject to this
Agreement shall be stamped or endorsed with a legend in substantially the
following form; provided, however, that in the event that Shares are registered
under the Securities Act of 1933, as amended, the Company shall promptly upon
request, but in any event not later than is necessary in order to consummate any
sale pursuant to any underwriting agreement or sales agency agreement relating
thereto, deliver a replacement certificate not containing the first paragraph of
the legend below in exchange for the legended certificate (it being understood
that such legend shall be placed on such replacement certificate if the sale
does not occur in accordance with the terms of the registration statement); and
provided, further, that the Company shall upon termination of this Agreement
promptly upon request deliver a replacement certificate not containing the
second paragraph of the legend below in exchange for the legended certificate:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS,
AND ACCORDINGLY NEITHER THE SHARES NOR ANY INTEREST THEREIN MAY BE SOLD,
TRANSFERRED, PLEDGED, OR OTHERWISE DISPOSED OF UNLESS SO REGISTERED OR AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
IN ADDITION, TRANSFERS, VOTING AND OTHER MATTERS IN RESPECT OF THE SHARES OF
COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A STOCKHOLDERS
AGREEMENT DATED AS OF JULY 29, 1997 AMONG THE COMPANY AND CERTAIN STOCKHOLDERS
NAMED THEREIN, A COPY OF WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY AND MAY BE OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO THE
COMPANY.
Section 5.2. Removal of Legends. From and after the effective date of any
registration statement registering the Shares subject hereto for sale pursuant
to the Securities Act of 1933, as amended, and compliance by the Company with
any applicable state securities or "Blue Sky" laws, the Stockholders shall be
entitled to exchange the certificates representing their Shares for certificates
not bearing the first restrictive legend set forth in Section 5.1 above. In
connection with any Transfer permitted pursuant to this Agreement (other than
Transfers pursuant to Sections 2.1(f) or 2.1(g)), the Stockholder Transferring
Shares shall be entitled to exchange the certificates representing the Shares
being Transferred for replacement certificates not bearing the second
restrictive legend set forth in Section 5.1 above.
<PAGE>
ARTICLE VI
Effectiveness; Termination
Section 6.1. Effectiveness; Termination of Agreement. This Agreement shall
become effective as of the date first above written and shall terminate upon the
earliest to occur of the following: (i) upon the written consent of (x) the
Majority Holders, and (y) the holders of a majority of the shares of Common
Stock then beneficially owned by Brand and any Brand Transferee, as a group,
(ii) Brand and any Brand Transferees, as a group, or the Purchaser Group
becoming the beneficial owner of less than 10% of the outstanding Common Stock
(determined on a fully-diluted basis), or (iii) the consummation of a Company
Sale, only to the extent that such transaction has been duly approved pursuant
to Section 4.1(c); provided, however, that no such termination shall relieve any
Person of any liability for a breach or default.
ARTICLE VII
Miscellaneous
Section 7.1. Recapitalization, Exchanges, etc. Affecting the Common Stock.
The provisions of this Agreement shall apply to the full extent set forth herein
with respect to (a) the Shares and (b) any and all shares of capital stock of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for, or in substitution for the Shares, by reason of any stock
dividend, split, reverse split, combination, recapitalization, reclassification,
merger, consolidation or otherwise. In the event of any change in the
capitalization of the Company, as a result of any stock split, stock dividend or
stock combination, the provisions of this Agreement shall be appropriately
adjusted.
Section 7.2 No Joint Venture or Partnership. No party shall have any
authority to bind or commit any other party hereto and no such authority shall
be implied by the provisions hereof. Nothing herein shall be deemed or construed
to create a joint venture, partnership or agency relationship between any of the
parties hereto for any purpose.
Section 7.3. Injunctive Relief. 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 and 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 it may have, be entitled to equitable and injunctive
relief, including, without limitation, temporary, preliminary and permanent
injunctive relief, 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
him or it, without the necessity of posting bond or other security against him
or it, and consents to the entry
<PAGE>
of injunctive relief against him or it enjoining or restraining any breach or
threatened breach of such provisions of this Agreement.
Section 7.4. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors,
assigns and legal representatives. This Agreement shall be for the sole benefit
of the parties to this Agreement and their respective successors, 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, assigns
and legal representatives, any legal or equitable right, remedy or claim
hereunder. This Agreement may not be assigned by operation of law or otherwise,
and any attempted assignment shall be null and void, except that, any
Stockholder may assign its rights hereunder, in whole but not in part, in
connection with a Transfer of Shares made in compliance with all of the
provisions of this Agreement. If any Stockholder shall acquire additional
Shares, in any manner, whether by a Transfer permitted hereunder, operation of
law or otherwise, such Shares shall be held subject to all of the terms of this
Agreement, and by taking and holding such Shares such Person shall be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement. Any Transferee wishing to become a party
hereto or otherwise required to become such a party shall execute an instrument
in the form of Exhibit A hereof agreeing to be bound by the provisions hereof.
Section 7.5. Expenses. Except as provided in the Purchase Agreement, each
party hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated hereby.
Section 7.6. Amendment; Waiver. (a) This Agreement may be amended by a
written instrument duly executed by the parties affected thereby.
(b) No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon breach thereof shall constitute a waiver of any
such breach or of any other covenant, duty, agreement or condition, any such
waiver being effective only if contained in a writing executed by the waiving
party.
Section 7.7. Notices. Except as otherwise provided in this Agreement, all
notices, requests, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
by hand, when delivered by courier, three days after being deposited in the mail
(registered or certified mail, postage prepaid, return receipt requested), or
when received by facsimile transmission upon receipt of a confirmed transmission
report, as follows:
If to the Company: 50 Orville Drive
Bohemia, New York 11716
Tel: (516) 784-4110
Fax: (516) 784-4132
Attention: Chief Executive Officer
<PAGE>
and if to the other parties at the address or facsimile transmission number
specified below its name on the signature pages hereto (or, in the case of
Persons who become parties hereto subsequently, at their last addresses or
facsimile transmission numbers shown on the record books of the Company). Any
party hereto, by notice given to the other parties hereto in accordance with
this Section 7.7, may change the address or facsimile transmission number to
which such notice or other communications are to be sent to such party. Whenever
pursuant to this Agreement any notice is required to be given by any Stockholder
to any other Stockholder or Stockholders, such Stockholder may request from the
Company a list of addresses and facsimile transmission numbers of all
Stockholders of the Company, which list shall be promptly furnished to such
Stockholder.
Section 7.8. Inspection. For so long as this Agreement shall be in effect,
this Agreement, any amendments hereto and a complete list of the names and
addresses of all Stockholders shall be made available for inspection and copying
on any business day by any Stockholder at the offices of the Company at the
address thereof set forth in Section 7.7 above.
Section 7.9. APPLICABLE LAW. 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, EXCEPT TO THE EXTENT
THAT THE PROVISIONS OF THE DELAWARE GENERAL CORPORATION LAW APPLY THERETO.
Section 7.10. Headings. The descriptive headings of the several sections in
this Agreement are for convenience only and do not constitute part of this
Agreement and shall not affect in any way the meaning or interpretation of this
Agreement.
Section 7.11. Integration. This Agreement and the other writings referred
to herein or delivered pursuant hereto which form a part hereof contain the
entire understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to its subject matter. There are no restrictions, agreements,
promises, representations, warranties, covenants or undertakings with respect to
its subject matter other than those expressly set forth or referred to herein.
Section 7.12. Severability. If any term or provision of this Agreement or
any application thereof shall be declared or held invalid, illegal or
unenforceable, in whole or in part, whether generally or in any particular
jurisdiction, such provision shall be deemed amended to the extent, but only to
the extent, necessary to cure such invalidity, illegality or unenforceability,
and the validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 7.13. Consent to Jurisdiction. 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
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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.
Section 7.14. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date set forth above.
LOGIMETRICS, INC.
By: /s/Charles S. Brand
_______________________________
Name:
Title:
/s/Charles S. Brand
________________________________
Charles S. Brand
20 Meridian Road
Eatontown, New Jersey 07724
Tel: (908) 935-7150
Fax: (908) 935-7151
CRAMER ROSENTHAL McGLYNN, INC.
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
L.A.D. EQUITY PARTNERS, L.P.
By: Flint Investments, Inc.
Its General Partner
By: /s/Arthur J. Pergament
_______________________________
Name: Arthur J. Pergament
Title: Vice President
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
/s/Gerald B. Cramer
___________________________________
Gerald B. Cramer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Edward J. Rosenthal
___________________________________
Edward J. Rosenthal, Keogh
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM 1997 ENTERPRISE FUND, LLC
By: Cramer Rosenthal McGlynn, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM PARTNERS, L.P.
By: CRM Management, Inc.
Its General Partner
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
CRM RETIREMENT PARTNERS, L.P.
By: CRM Management, Inc.
Its General Partner
By: /s/Eugene A. Trainor
_______________________________
Name: Eugene A. Trainor
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM MADISON PARTNERS, L.P.
By: CRM Management, Inc.
Its General Partner
By: /s/Eugene A. Trainor
___________________________
Name: Eugene A. Trainor
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
CRM U.S. VALUE FUND, LTD.
By: CRM Management, Inc.
Its General Partner
By: /s/Eugene A. Trainor
___________________________
Name: Eugene A. Trainor
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM EURYCLEIA PARTNERS, L.P.
By: CRM Eurycleia Investments, LLC,
Its General Partner
By: CRM Management, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
____________________________
Name: Eugene A. Trainor
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
A.C. ISRAEL ENTERPRISES, INC.
By: /s/Jay Howard
___________________________
Name: Jay Howard
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
CRM-EFO PARTNERS, L.P.
By: CRM-EFO Investments, LLC,
Its General Partner
By: CRM Management, Inc.,
Its Managing Member
By: /s/Eugene A. Trainor
____________________________
Name: Eugene A. Trainor
Title:
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
<PAGE>
_______________________________
Richard S. Fuld, Jr.
By: Cramer Rosenthal McGlynn, Inc.,
Attorney-in-Fact
By: /s/Eugene A. Trainor
__________________________
Name: Eugene A. Trainor
Title: Chief Financial Officer
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
PAMELA EQUITIES CORP.
By: /s/Gregory Manocherian
__________________________
Name: Gregory Mancherian
Title:
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
WHITEHALL PROPERTIES, LLC
By: /s/Gregory Manocherian
________________________
Name:
Title: Manager
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
KABUKI PARTNERS ADP, GP
By: /s/Gregory Manocherian
________________________
Name:
Title: General Partner
3 New York Plaza
18th Floor
New York, New York 10004
Tel: (212) 837-4829
Fax: (212) 837-4938
MBF CAPITAL CORP.
By: /s/Mark B. Fisher
________________________
Name: Mark B. Fisher
Title: President
12 East 49th Street
35th Floor
New York, New York 10017
Telephone: (212) 339-2861
Facsimile: (212) 339-2834
<PAGE>
MBF BROADBAND SYSTEMS, L.P.
By: MBF Broadband Systems, Inc.,
Its General Partner
By: /s/Mark B. Fisher
________________________
Name: Mark B. Fisher
Title: President
12 East 49th Street
35th Floor
New York, New York 10017
Telephone: (212) 339-2861
Facsimile: (212) 339-2834
PHINEAS BROADBAND SYSTEMS, L.P.
By: MBF Broadband Systems, Inc.,
Its General Partner
By: /s/Mark B. Fisher
________________________
Name: Mark B. Fisher
Title: President
12 East 49th Street
35th Floor
New York, New York 10017
Telephone: (212) 339-2861
Facsimile: (212) 339-2834
/s/Mark B. Fisher
_____________________________
Mark B. Fisher
12 East 49th Street
35th Floor
New York, New York 10017
Telephone: (212) 339-2861
Facsimile: (212) 339-2834
McGLYNN FAMILY PARTNERSHIP
By: /s/Ronald H. McGlynn
_______________________________
Name: Ronald H. McGlynn
Title: General Partner
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Fred M. Filoon
_____________________________
Fred M. Filoon
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
/s/Eugene A. Trainor
_____________________________
Eugene A. Trainor
520 Madison Avenue
New York, New York 10022
Tel: (212) 838-3830
Fax: (212) 644-8291
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EXHIBIT A
In consideration of the Transfer of Shares to the undersigned, the
undersigned, having all due authority, hereby agrees to be bound by the terms
and provisions of the Stockholders Agreement, dated as of July 29, 1997 (the
"Stockholders Agreement"), by and among LogiMetrics, Inc. and the Stockholders
party thereto relating to such Shares as a Stockholder thereunder. Capitalized
defined terms used herein without definition shall have the same meanings
respectively as assigned thereto in the Stockholders Agreement.
Name: ______________________________
By: ________________________________
Date: ______________________________
