EXHIBIT 10.4
STOCKHOLDERS AGREEMENT
DATED AS OF APRIL 30, 1997
Among
L-3 COMMUNICATIONS HOLDINGS, INC.
LOCKHEED ▇▇▇▇▇▇ CORPORATION,
▇▇▇▇▇▇ BROTHERS CAPITAL PARTNERS III, L.P.,
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.,
▇▇▇▇▇ ▇. ▇▇▇▇▇,
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . 2
ARTICLE II
RESTRICTIONS ON TRANSFERS
Section 2.1. Transfers in Accordance with this Agreement . . 6
Section 2.2. Agreement to be Bound . . . . . . . . . . . . . 6
Section 2.3. Legend . . . . . . . . . . . . . . . . . . . . 6
Section 2.4. Transfers to Permitted Transferees and the
Company . . . . . . . . . . . . . . . . . . . 6
Section 2.5. No Transfer Period; Rights of First Offer . . . 7
Section 2.6. Tag Along Right . . . . . . . . . . . . . . . . 8
Section 2.7. Bring Along Right . . . . . . . . . . . . . . . 9
Section 2.8. Registration Rights . . . . . . . . . . . . . . 10
ARTICLE III
CLOSING
Section 3.1. Closing . . . . . . . . . . . . . . . . . . . . 10
Section 3.2. Deliveries at Closing; Method of Payment
of Purchase Price . . . . . . . . . . . . . . 10
ARTICLE IV
ADDITIONAL RIGHTS AND OBLIGATIONS
OF STOCKHOLDERS AND THE COMPANY
Section 4.1. Preemptive Rights . . . . . . . . . . . . . . . 11
Section 4.2. Future Services . . . . . . . . . . . . . . . . 11
Section 4.3. Regulatory Event . . . . . . . . . . . . . . . 12
Section 4.4. Regulatory Compliance . . . . . . . . . . . . . 12
Section 4.5. Standstill Agreement . . . . . . . . . . . . . 13
Section 4.6. Certain Other Agreements . . . . . . . . . . . 13
ARTICLE V
CERTAIN VOTING AGREEMENTS
Section 5.1. Board of Directors of the Company . . . . . . . 13
Section 5.2. Charter Documents . . . . . . . . . . . . . . . 15
Section 5.3. Consent to an Initial Public Offering;
Required IPO . . . . . . . . . . . . . . . . 15
ARTICLE VI
TERMINATION
Section 6.1. Termination . . . . . . . . . . . . . . . . . . 15
ARTICLE VII
MISCELLANEOUS
Section 7.1. No Inconsistent Agreements . . . . . . . . . . 16
Section 7.2. Recapitalization, Exchanges, etc . . . . . . . 16
Section 7.3. Successors and Assigns . . . . . . . . . . . . 16
Section 7.4. No Waivers, Amendments . . . . . . . . . . . . 16
Section 7.5. Notices . . . . . . . . . . . . . . . . . . . . 16
Section 7.6. Inspection . . . . . . . . . . . . . . . . . . 17
SECTION 7.7. GOVERNING LAW . . . . . . . . . . . . . . . . . 17
Section 7.8. Section Headings . . . . . . . . . . . . . . . 17
Section 7.9. Entire Agreement . . . . . . . . . . . . . . . 17
Section 7.10. Severability . . . . . . . . . . . . . . . . . 17
Section 7.11. Counterparts . . . . . . . . . . . . . . . . . 17
Section 7.12. Option Plan . . . . . . . . . . . . . . . . . . 18
Exhibit A Bylaws
Exhibit B Certificate of Incorporation
Exhibit C Registration Rights
Exhibit D Form of Agreement to be Bound
Exhibit E 1997 Option Plan for Key Employees of L-3
Communications Holdings, Inc.
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of April 30, 1997 among L-3
Communications Holdings, Inc., a Delaware corporation (the "Company"),
Lockheed ▇▇▇▇▇▇ Corporation, a Maryland corporation ("Lockheed ▇▇▇▇▇▇"),
▇▇▇▇▇▇ Brothers Capital Partners III, L.P., a Delaware limited partnership
("▇▇▇▇▇▇"), ▇▇▇▇▇▇ Brothers Holders Inc., a Delaware corporation and the
general partner of ▇▇▇▇▇▇ ("LBHI"), ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇" and, together with ▇▇▇▇▇, the "Management Investors").
Each of the parties to this Agreement (other than the Company) and any other
Person (as hereinafter defined) who or which shall become a party to or agree
to be bound by the terms of this Agreement after the date hereof is sometimes
hereinafter referred to as a "Stockholder."
WITNESSETH
WHEREAS, this Agreement shall become effective (the "Effective
Date") on the date of, and simultaneously with, the Closing under the
Subscription Agreements (as hereinafter defined);
WHEREAS, as of the Effective Date, the Company will have an
authorized capital stock consisting of 25,000,000 shares of Class A common
stock, par value $0.01 per share (the "Class A Common Stock"), 3,000,000
shares of Class B common stock, par value $0.01 per share (the "Class B
Common Stock") and 3,000,000 shares of Class C common stock, par value $0.01
per share (the "Class C Common Stock") and, together with the Class A Common
Stock, the "Common Stock").
WHEREAS, the Company, Lockheed Martin, Lehman and the Management
Investors have entered into a Transaction Agreement dated as of March 28,
1997 (the "Transaction Agreement") pursuant to which, among other things, the
Company has agreed, subject to the terms and conditions thereof, to purchase
certain assets and assume certain related liabilities of Lockheed ▇▇▇▇▇▇;
WHEREAS, in connection with the consummation of the transactions
pursuant to the Transaction Agreement, each of Lockheed Martin, Lehman and
LBHI has entered into a Common Stock Subscription Agreement with the Company
dated as of the date of this Agreement pursuant to which each such
Stockholder has agreed, subject to the terms and conditions thereof, to
purchase shares of Class A Common Stock;
WHEREAS, in connection with the consummation of the transactions
pursuant to the Transaction Agreement, each of the Management Investors has
entered into a Common Stock Subscription Agreement with the Company dated as
of the date of this Agreement (such Common Stock Subscription Agreements,
together with the Common Stock Subscription Agreements referred to in the
preceding recital, the "Subscription Agreements") pursuant to which each such
Management Investor has agreed, subject to the terms and conditions thereof,
to purchase shares of Class B Common Stock; and
WHEREAS, the parties hereto desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of the Shares (as
hereinafter defined) and to provide for certain rights and obligations and
other agreements in respect of the Shares, all as hereinafter provided.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the
following terms have the following meanings:
"Acquisition Transaction" shall have the meaning set forth in
Section 4.6.
"Adverse Clearance Status" shall have the meaning
set forth in Section 4.3.
"Affiliate", as applied to any Person, shall mean any other Person
directly or indirectly controlling, controlled by, or under common control
with, that Person. For the purposes of this definition "control" (including,
with correlative meanings, the terms "controlling", "controlled by" and
"under common control with"), as applied to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of
voting securities, by contract or otherwise. Notwithstanding the foregoing,
for purposes of this Agreement, Lockheed ▇▇▇▇▇▇ shall not be considered an
Affiliate of ▇▇▇▇▇▇ or of either of the Management Investors and the employee
benefit plans of Lockheed ▇▇▇▇▇▇ and its Subsidiaries shall not be considered
Affiliates of Lockheed ▇▇▇▇▇▇.
"Board of Directors" shall mean the Board of Directors of the
Company.
"Business" shall have the meaning set forth in the Transaction
Agreement.
"Buyer's Notice" shall have the meaning set forth in Section
2.5(c).
"Buyout Notice" shall have the meaning set forth in Section 2.7.
"Bylaws" shall mean the Bylaws of the Company, in the form of
Exhibit A, as amended from time to time, consistent with the terms hereof.
"Certificate of Incorporation" shall mean the Amended and Restated
Certificate of Incorporation of the Company, in the form of Exhibit B, as
amended from time to time, consistent with the terms hereof.
"Charter Documents" shall have the meaning set forth in Section
5.2(a).
"Class A Common Stock" shall have the meaning set forth in the
recitals of this Agreement.
"Class B Common Stock" shall have the meaning set forth in the
recitals of this Agreement.
"Class C Common Stock" shall have the meaning set forth in the
recitals of this Agreement.
"Common Stock" shall have the meaning set forth in the recitals of
this Agreement.
"Company" shall have the meaning set forth in the preamble of this
Agreement.
"Effective Date" shall have the meaning set forth in the recitals
of this Agreement.
"FOCI" shall have the meaning set forth in Section 4.3.
"Initial Public Offering" shall mean the initial Public Offering
(other than pursuant to a registration statement on Form S-8 or otherwise
relating to equity securities issuable under any employee benefit plan of the
Company).
"▇▇▇▇▇" shall have the meaning set forth in the preamble of this
Agreement.
"▇▇▇▇▇▇▇" shall have the meaning set forth in the preamble of this
Agreement.
"▇▇▇▇▇▇" shall have the meaning set forth in the preamble of this
Agreement.
"LBHI" shall have the meaning set forth in the preamble of this
Agreement.
"▇▇▇▇▇▇ Nominees" shall have the meaning set forth in Section
5.1(a).
"Lockheed ▇▇▇▇▇▇" shall have the meaning set forth in the preamble
of this Agreement.
"Lockheed ▇▇▇▇▇▇ Nominees" shall have the meaning set forth in
Section 5.1(a).
"Management Investors" shall have the meaning set forth in the
preamble of this Agreement.
"Offer Price" shall have the meaning set forth in Section 2.5(b).
"Offered Shares" shall have the meaning set forth in Section
2.5(b).
"Option Plan" shall mean the 1997 Option Plan for Key Employees of
L-3 Communications Holdings, Inc., in the form of Exhibit E hereto.
"Payment in Full of the Preference Amount" shall have the meaning
given such term in the Certificate of Incorporation.
"Permitted Transferee" shall mean:
(i) in the case of ▇▇▇▇▇▇ or LBHI and Permitted Transferees of
▇▇▇▇▇▇ and LBHI, (A) LBHI or ▇▇▇▇▇▇, as the case may be, or any
controlled Affiliate (other than an individual) of LBHI, (B) any general
or limited partner, director, officer or employee of ▇▇▇▇▇▇, LBHI or any
controlled Affiliate (other than an individual) of LBHI, (C) the heirs,
executors, administrators, testamentary trustees, legatees or
beneficiaries of any of the individuals referred to in clause (B), (D)
any trust, the beneficiaries of which include only (1) ▇▇▇▇▇▇, (2)
Permitted Transferees referred to in clauses (A), (B) and (C) and (3)
spouses and lineal descendants of Permitted Transferees referred to in
clause (B) and (E) a corporation or partnership, a majority of the
equity of which is owned and controlled by ▇▇▇▇▇▇ and/or Permitted
Transferees referred to in clauses (A), (B), (C) and (D);
(ii) in the case of Lockheed ▇▇▇▇▇▇ and Permitted Transferees of
Lockheed ▇▇▇▇▇▇, any controlled Affiliate of Lockheed ▇▇▇▇▇▇; and
(iii) in the case of each Management Investor and Permitted
Transferees of such Management Investor, his or her spouse or any of his
or her lineal descendants or legatees or a testamentary trust for such
legatees, or a trust or individual retirement account, the beneficiaries
of which or a corporation or partnership the stockholders or partners of
which include only such Stockholder, his or her spouse and his or her
lineal descendants or a corporation or partnership wholly owned by them;
provided, that any such Permitted Transferee referred to in clauses (i)-
(iii) agrees in writing to be bound by the terms of this Agreement in
accordance with Section 2.2.
"Person" shall mean an individual, partnership, corporation,
business trust, joint stock company, limited liability company,
unincorporated association, joint venture or other entity of whatever nature.
"Proposed Transferee" shall have the meaning set forth in Section
2.6.
"Public Offering" shall mean any underwritten public offering of
equity securities of the Company pursuant to an effective registration
statement under the Securities Act.
"Put" shall have the meaning set forth in Section 4.3.
"Reduced Transfer Price" shall have the meaning set forth in
Section 2.5(d).
"Reduced Transfer Price Notice" shall have the meaning set forth in
Section 2.5(d).
"Regulatory Event Notice" shall have the meaning set forth in
Section 4.3.
"Regulatory Portion" shall have the meaning set forth in Section
4.3.
"Restriction Lapse" shall have the meaning given such term in the
Certificate of Incorporation.
"Second Reduction Transfer Price" shall have the meaning set forth
in Section 2.5(e).
"Second Reduction Transfer Price Notice" shall have the meaning set
forth in Section 2.5(e).
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Seller" shall have the meaning set forth in Section 2.5(b).
"Seller's Notice" shall have the meaning set forth in Section
2.5(b).
"Share Equivalents" shall mean securities of any kind issued by the
Company convertible into or exchangeable for Shares or options, warrants or
other rights to purchase or subscribe for Shares or securities convertible
into or exchangeable for Shares.
"Shares" shall mean, with respect to any Stockholder, shares of
Common Stock, whether now owned or hereafter acquired (including upon
exercise of options, preemptive rights or otherwise), held by such
Stockholder.
"Shares Subject to Forfeiture" shall have the meaning given such
term in the Certificate of Incorporation.
"Stockholder" shall have the meaning set forth in the preamble of
this Agreement.
"Subscription Agreements" shall have the meaning set forth in the
recitals of this Agreement.
"Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which a majority of the capital stock or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar function at the time
directly or indirectly owned by such Person.
"Third Party" shall mean any prospective Transferee of Shares
(other than the Company) that is not a Permitted Transferee of the
Stockholder proposing the Transfer of such Shares to such prospective
Transferee.
"Transaction Agreement" shall have the meaning set forth in the
recitals of this Agreement.
"Transfer" shall have the meaning set forth in Section 2.1.
"Transfer Closing Date" shall have the meaning set forth in Section
3.1.
"Transferee" shall mean any Person who or which acquires Shares
from a Stockholder or a Transferee (including Permitted Transferees) of a
Stockholder subject to this Agreement.
ARTICLE II
RESTRICTIONS ON TRANSFERS
Section 2.1. Transfers in Accordance with this Agreement. No
Stockholder shall, directly or indirectly, transfer, sell, assign, pledge,
hypothecate, encumber, or otherwise dispose of all or any portion of any
Shares or any economic interest therein (including without limitation by
means of any participation or swap transaction) (each, a "Transfer") to any
Person, except in compliance with the Securities Act, applicable state and
foreign securities laws and this Agreement. No Stockholder shall Transfer
any Shares if the consummation of such Transfer may result in the Company
becoming subject to FOCI or Adverse Clearance Status. Any attempt to
Transfer any Shares in violation of the terms of this Agreement shall be null
and void, and neither the Company, nor any transfer agent shall register upon
its books any Transfer of Shares by a Stockholder to any Person except a
Transfer in accordance with this Agreement.
Section 2.2. Agreement to be Bound. No Transfer of Shares (other
than Transfers (i) in the Initial Public Offering, if any, or (ii) to the
Company) shall be effective unless (i) the certificates representing such
Shares issued to the Transferee shall bear the legend provided in Section 2.3
and (ii) the Transferee, if not already a party hereto, shall have executed
and delivered to each other party hereto, as a condition precedent to such
Transfer, an instrument or instruments substantially in the form of Exhibit D
or otherwise reasonably satisfactory to such parties confirming that the
Transferee agrees to be bound by the terms of this Agreement with respect to
the Shares so Transferred to the same extent applicable to the Transferor
thereof.
Section 2.3. Legend. A copy of this Agreement shall be filed with
the Secretary of the Company and kept with the records of the Company. Each
Stockholder hereby agrees that each certificate representing Shares issued to
any Stockholder, or any certificate issued in exchange for any similarly
legended certificate, shall bear a legend reading substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND
MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.
THE SHARES REPRESENTED BY THIS CERTIFICATE ALSO ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
STOCKHOLDERS AGREEMENT, DATED AS OF APRIL 30, 1997, COPIES OF
WHICH MAY BE OBTAINED FROM L-3 COMMUNICATIONS HOLDINGS, INC.
(THE "COMPANY"). NO TRANSFER OF SUCH SHARES WILL BE MADE ON
THE BOOKS OF THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF
COMPLIANCE WITH THE TERMS OF SUCH AGREEMENT.
Section 2.4. Transfers to Permitted Transferees and the Company.
(a) None of the restrictions contained in this Agreement with respect to
Transfers of Shares (other than Sections 2.2, 2.3 and 2.4(b)) shall apply to
any Transfer of Shares by any Stockholder (i) to a Permitted Transferee of
such Stockholder or (ii) to the Company.
(b) Each Permitted Transferee of any Stockholder shall, and such
Stockholder shall cause such Permitted Transferee to, transfer back to such
Stockholder any Shares it owns prior to such Permitted Transferee ceasing to
be a Permitted Transferee of such Stockholder.
Section 2.5. No Transfer Period; Rights of First Offer. (a) The
Stockholders may not Transfer Shares prior to the first anniversary of the
Effective Date, except for Transfers referred to in Section 2.4. Commencing
on the first anniversary of the Effective Date, with the exception of
Transfers in accordance with Section 2.4, each Stockholder may Transfer
Shares only following compliance and in accordance with the provisions of
this Section 2.5 and, as applicable, Sections 2.6 or 2.7.
(b) Any Stockholder desiring to Transfer Shares to any Third Party
(such Stockholder, in such capacity, a "Seller") shall give written notice (a
"Seller's Notice") to the other Stockholders and to the Company (i) stating
that such Seller desires to make such Transfer and (ii) setting forth the
number of Shares proposed to be Transferred (the "Offered Shares") and the
cash price per share that such Seller proposes to be paid for such Offered
Shares (the "Offer Price") and, to the extent then known, the other terms and
conditions of such Transfer, including the identity of any proposed
transferee. Each Seller's Notice shall constitute an irrevocable offer by
the Seller to the other Stockholders and to the Company of the Offered Shares
at the Offer Price in cash and in accordance with the terms of this
Agreement.
(c) Within 60 days after receipt of a Seller's Notice, each other
Stockholder may elect to purchase, on a pro rata basis based upon the total
number of outstanding Shares then held by such other Stockholders (provided
that any Offered Shares thereby offered to any other Stockholder that does
not elect to purchase such Offered Shares shall be reallocated (on a pro rata
basis based on the total number of Offered Shares each other Stockholder
elected to purchase) among the remaining other Stockholders who have elected
to exercise their option to purchase Offered Shares) all (but not less than
all) of the Offered Shares allocated to it at the Offer Price in cash. The
Company may elect, within 10 days following the expiration of such 60-day
period, to purchase at the Offer Price in cash all (but not less than all) of
the Offered Shares as to which no election to purchase is made by the other
Stockholders within such 60-day period. The election to purchase such
Offered Shares shall be exercisable by delivery of a notice (a "Buyer's
Notice") to the Seller, with a copy to the Company (where the Company is not
the electing party), stating (i) that such electing party elects to purchase
such Offered Shares at the Offer Price in cash, (ii) that such election is
irrevocable and (iii) the source of financing for such purchase, which
financing shall not be subject to any material contingencies. Delivery of a
Buyer's Notice shall constitute a contract among the Seller and the electing
party that has delivered such Buyer's Notice for the sale and purchase of the
Offered Shares at the Offer Price in cash and upon the other applicable terms
and conditions set forth in the Seller's Notice.
(d) If the other Stockholders and the Company fail to elect to
purchase all of the Offered Shares within the time periods specified in
Section 2.5(c), then the Seller may, within a period of 90 days following the
expiration of such time periods specified in Section 2.5(c), complete the
Transfer of all or any of the Offered Shares not purchased by the other
Stockholders or the Company to one or more Third Parties at a price per share
not less than 95% of the Offer Price; provided that if the purchase price per
share (the "Reduced Transfer Price") proposed to be paid by any such Third
Party for Offered Shares is less than 95% of the Offer Price, the Seller
shall promptly provide written notice (the "Reduced Transfer Price Notice")
to the other Stockholders and the Company of such intended Transfer
(including the material terms and conditions thereof) and the other
Stockholders and the Company shall have the right, exercisable by delivery of
a written election notice to the Seller within 30 days of receipt of such
notice, to purchase such Offered Shares at the Reduced Transfer Price and
otherwise substantially in accordance with the terms and conditions of the
intended Transfer to such Third Party, following which 30-day period, if no
such election is made, Section 2.5(e) shall apply.
(e) If the other Stockholders and the Company fail to elect to
purchase all of the Offered Shares at the Reduced Transfer Price in cash
within the 30-day period specified in Section 2.5(d), then the Seller may,
within a period of 90 days following the expiration of such 30-day period,
complete the Transfer of all or any of the Offered Shares to one or more
Third Parties at a price per share not less than 95% of the Reduced Transfer
Price; provided that if the purchase price per share (the "Second Reduced
Transfer Price") proposed to be paid by any such Third Party for Offered
Shares is less than 95% of the Reduced Transfer Price, the Seller shall
promptly provide written notice (the "Second Transfer Price Notice") to the
other Stockholders and the Company of such intended Transfer (including the
material terms and conditions thereof) and the other Stockholders and the
Company shall have the right, exercisable by delivery of a written election
notice to the Seller within 30 days of receipt of such notice, to purchase
such Offered Shares at the Second Reduced Transfer Price and otherwise
substantially in accordance with the terms and conditions of the intended
Transfer to such Third Party.
(f) If the other Stockholders and the Company fail to elect to
purchase all of the Offered Shares at the Offer Price (or, if applicable, the
Reduced Transfer Price or Second Reduced Transfer Price) in cash and the
Seller shall not have Transferred the Offered Shares to any Transferee prior
to the expiration of the 90-day period specified in Section 2.5(e), the
rights of first offer under this Section 2.5 shall again apply in connection
with any subsequent Transfer or offer to Transfer shares of Common Stock by
such Sellers.
Section 2.6. Tag Along Right. (a) If at any time on or after the
first anniversary of the Effective Date and prior to the consummation of an
Initial Public Offering, ▇▇▇▇▇▇ and/or LBHI (and/or their Permitted
Transferees) proposes to Transfer Shares to any Person (other than a
Permitted Transferee) (each, a "Proposed Transferee") in any transaction or
series of related transactions and as a result of such Transfer, ▇▇▇▇▇▇ and
LBHI (with their Permitted Transferees) would no longer own at least 35% of
the issued and outstanding Common Stock, then ▇▇▇▇▇▇ shall send written
notice to each Management Investor and Lockheed ▇▇▇▇▇▇ which shall state (i)
that ▇▇▇▇▇▇ and/or LBHI and/or their Permitted Transferees desires to make
such a Transfer, (ii) the identity of the Proposed Transferee and the number
of Shares proposed to be sold or otherwise transferred, (iii) the proposed
purchase price per Share to be paid and the other terms and conditions of
such Transfer and (iv) the projected closing date of such Transfer, which in
no event shall be prior to 30 days after the giving of such written notice to
each Management Investor and Lockheed ▇▇▇▇▇▇.
(b) For a period of 30 days after the giving of the notice
pursuant to clause (a) above, each Management Investor and Lockheed ▇▇▇▇▇▇
shall have the right to sell to the Proposed Transferees in such Transfer at
the same price and upon the same terms and conditions as ▇▇▇▇▇▇, LBHI (and/or
their Permitted Transferees) that percentage of the total number of Shares
held by such Management Investor or Lockheed ▇▇▇▇▇▇, as the case may be,
equal to the percentage of the total number of Shares then held by ▇▇▇▇▇▇,
LBHI and their Permitted Transferees proposed to be Transferred to such
Proposed Transferee; provided that neither Management Investor shall have the
right to sell any of its Shares Subject to Forfeiture pursuant to this
Section 2.6(b) if the price per share to be obtained by ▇▇▇▇▇▇ in such
Transfer is less than $6.47.
(c) The rights of each Management Investor and Lockheed ▇▇▇▇▇▇
under Section 2.6(b) shall be exercisable by delivering written notice
thereof, prior to the expiration of the 30-day period referred to in clause
(b) above, to ▇▇▇▇▇▇ with a copy to the Company; provided that Lockheed
▇▇▇▇▇▇ shall not be entitled to exercise any rights under this Section 2.6 if
neither of the Management Investors exercises his rights under this Section
2.6. The failure of such Management Investor or Lockheed ▇▇▇▇▇▇ to respond
within such period to ▇▇▇▇▇▇ shall be deemed to be a waiver of rights under
this Section 2.6.
(d) In the event that any Management Investor or Lockheed ▇▇▇▇▇▇
exercises rights under Section 2.6(b) and following such exercise there is a
change in the price or terms of the proposed transaction between ▇▇▇▇▇▇ and
the Proposed Transferee, then ▇▇▇▇▇▇ shall promptly notify such Management
Investor and Lockheed ▇▇▇▇▇▇ of the revised price or terms and such
Management Investor or Lockheed ▇▇▇▇▇▇, as the case may be, shall have the
right to exercise its rights under Section 2.6(b) by notice to ▇▇▇▇▇▇ within
two business days of receipt of the notice from ▇▇▇▇▇▇. The failure of such
Management Investor or Lockheed ▇▇▇▇▇▇ to respond within such two-day period
to ▇▇▇▇▇▇ shall be deemed to be a waiver of his or its rights under this
Section 2.6.
(e) For purposes of determining the number of Shares a Management
Investor may Transfer pursuant to this Section 2.6, such Management Investor
shall be deemed to hold the shares of Common Stock issuable upon exercise of
any outstanding options to purchase Common Stock he holds so long as (i) such
options have vested and (ii) the exercise price of such options is below the
proposed price to be paid by the Proposed Transferee in the Transfer to which
such determination relates.
Section 2.7. Bring Along Right. (a) If at any time on or after
the first anniversary of the Effective Date and prior to the consummation of
an Initial Public Offering, ▇▇▇▇▇▇ and/or LBHI (and/or their Permitted
Transferees) proposes to sell Shares to a Third Party other than an Affiliate
in any bona fide arm's-length transaction or series of related transactions
and as a result of such sale ▇▇▇▇▇▇ and LBHI with their Permitted Transferees
would cease to own at least 35% of the issued and outstanding Common Stock,
then ▇▇▇▇▇▇ shall have the right to deliver a written notice (a "Buyout
Notice") to each Management Investor (with a copy to Lockheed ▇▇▇▇▇▇) which
shall state (i) that ▇▇▇▇▇▇ proposes to effect such transaction, (ii) the
identity of the Third Party, the number of Shares to be sold and the proposed
purchase price per Share to be paid and any other terms and conditions, and
(iii) the projected closing date of such sale. Each such Management Investor
agrees that, upon receipt of a Buyout Notice, each such Management Investor
(and his Permitted Transferees) shall be obligated to sell in such
transaction that percentage of the total number of Shares held by such
Management Investor (determined on the basis set forth in Section 2.6(e))
equal to the percentage of the total number of Shares then held by ▇▇▇▇▇▇ and
LBHI and their Permitted Transferees to be sold in such transaction upon the
terms and conditions of such transaction (and otherwise take all necessary
action to cause consummation of the proposed transaction; provided, however,
that each such Management Investor shall only be obligated as provided above
in this Section 2.7 if each such Management Investor receives the same per
Share consideration as ▇▇▇▇▇▇ and LBHI (and/or their Permitted Transferees);
and provided further that in no event shall any Management Investor be
required to make any representations or provide any indemnities other than on
a proportionate basis and other than with respect to matters relating solely
to ▇▇▇▇▇▇ and LBHI (and/or its Permitted Transferees), such as
representations as to title to Shares to be transferred by ▇▇▇▇▇▇ and LBHI or
their Permitted Transferees.
(b) At any time that ▇▇▇▇▇▇ exercises its rights under this
Section 2.7, Lockheed ▇▇▇▇▇▇ shall have the right, but not the obligation, to
sell in the transaction specified in the Buyout Notice at the same price and
upon the same terms and conditions as ▇▇▇▇▇▇ and/or LBHI (and/or their
Permitted Transferees) and the Management Investors that percentage of the
total number of Shares held by Lockheed ▇▇▇▇▇▇ equal to the percentage of the
total number of Shares then held by ▇▇▇▇▇▇ and LBHI and their Permitted
Transferees to be sold in such transaction. The rights of Lockheed ▇▇▇▇▇▇
under this Section 2.7(b) shall be exercisable by delivering written notice
thereof at least 10 days prior to the proposed closing date of such
transaction.
Section 2.8. Registration Rights. The Company hereby grants to
each Stockholder the registration and other rights set forth in, and each
Stockholder agrees to comply with the terms and conditions contained in,
Exhibit C.
ARTICLE III
CLOSING
Section 3.1. Closing. Any Stockholders acquiring or Transferring
any Shares pursuant to Section 2.5 shall mutually determine a closing date
(the "Transfer Closing Date") which, subject to any applicable regulatory
waiting periods, shall not be more than 60 days after the last notice is
given with respect to such Transfer pursuant to Section 2.5 or after the
expiration of the last notice period pursuant to Section 2.5 applicable to
such Transfer. The closing shall be held at 10:00 a.m., local time, on the
Transfer Closing Date at the principal office of the Company, or at such
other time and/or place as the parties may mutually agree.
Section 3.2. Deliveries at Closing; Method of Payment of Purchase
Price. On the Transfer Closing Date, each selling Stockholder shall deliver
(i) certificates representing the Shares being sold, free and clear of any
lien, claim or encumbrance, and (ii) such other documents, including evidence
of ownership and authority, as the Transferees may reasonably request. The
purchase price shall be paid by wire transfer of immediately available funds
no later than 2:00 p.m. on the Transfer Closing Date.
ARTICLE IV
ADDITIONAL RIGHTS AND OBLIGATIONS
OF STOCKHOLDERS AND THE COMPANY
Section 4.1. Preemptive Rights. If the Company shall (other than
in connection with the issuance of Shares or Share Equivalents (i) to
employees, officers and directors of or any of its direct or indirect
subsidiaries with respect to any employee benefit plan, incentive award
program or other compensation arrangement approved by the affirmative vote of
a majority of the outstanding shares and (ii) as all or a portion of the
consideration for the purchase of capital stock or assets of another Person)
(A) issue any Shares, (B) issue any Share Equivalents or (C) enter into any
contracts, commitments, agreements, understandings or arrangements of any
kind relating to the issuance of any Shares or Share Equivalents (in each
case other than in connection with the Initial Public Offering), each
Stockholder shall have the right to purchase that number of Shares (or Share
Equivalents, as the case may be) at the same purchase price as the price for
the additional Shares (or Share Equivalents) to be issued so that, after the
issuance all of such Shares (or Share Equivalents), together with all Shares
(or Share Equivalents) to be issued pursuant to this Section 4.1 in
connection therewith, the Stockholder would, in the aggregate, hold the same
proportional interest of the outstanding Shares (assuming, in the case of an
issuance of Share Equivalents, the conversion, exercise or exchange thereof)
as was held by such Stockholder prior to the issuance of such additional
Shares (or Share Equivalents).
Section 4.2. Future Services. The Company agrees that ▇▇▇▇▇▇
Brothers Inc. ("▇▇▇▇▇▇ Brothers") shall have the right, but not the
obligation, which right shall be exercisable in ▇▇▇▇▇▇ Brothers' sole
discretion, to provide investment banking services to the Company on an
exclusive basis for a period of five years from the Effective Date (the
"Exclusivity Period"); provided that as to acquisitions undertaken by the
Company for cash, the Exclusivity Period shall be the three year period after
the Effective Date. Such services may include arranging senior and
subordinated debt financing for the Company, underwriting on a sole managed
basis or acting as the sole initial purchaser or placement agent for the
Company's or its affiliates' debt and/or equity securities, acting as the
exclusive financial advisor to the Company with respect to any mergers,
acquisitions or divestitures for which the services of an investment banking
firm are utilized and providing other financial advisory services on an
exclusive basis. In the event that ▇▇▇▇▇▇ Brothers agrees to provide any
investment banking services to the Company, ▇▇▇▇▇▇ Brothers shall be paid
fees to be mutually agreed upon based on fees which are competitive based
upon similar transactions and practices in the investment banking industry.
The Company acknowledges that ▇▇▇▇▇▇ Brothers may determine in its sole
discretion for any reason (including, without limitation, the results of its
due diligence investigation, a material change in the Company's financial
condition, business, management, prospects or value, the lack of appropriate
internal ▇▇▇▇▇▇ Brothers' committee approvals or then current market
conditions) not to provide such investment banking services to the Company.
In the event that ▇▇▇▇▇▇ Brothers elects not to provide such services to the
Company with respect to any particular transaction, nothing contained herein
shall be deemed to prevent the Company from utilizing the services of another
investment banking firm for such transaction or to require the Company to pay
a fee to ▇▇▇▇▇▇ Brothers with respect to such transaction, but such retention
of another investment banking firm shall be without prejudice to ▇▇▇▇▇▇
Brothers' rights hereunder with respect to subsequent transactions.
Section 4.3. Regulatory Event. If (a) the Company receives
notification from a representative of the Department of Defense or any other
U.S. government department, agency or authority that the ownership of Shares
by ▇▇▇▇▇▇ and/or LBHI or the terms and provisions of this Agreement or the
Charter Documents (i) causes the Company to be under impermissible foreign
ownership, control or influence ("FOCI") within the meaning of Section 721 of
Title VII of the Defense Production Act of 1950, as amended by Section 5021
of the Omnibus Trade and Competitiveness Act of 1988, or (ii) materially
adversely affects the ability of the Company to maintain or obtain Department
of Defense or other U.S. government department, agency or authority security
clearance of the level held by the Business and their employees on the
Effective Date or which are necessary or desirable for the Company to perform
and to bid competitively on U.S. government contracts and to participate in
joint ventures formed to bid on or perform U.S. government contracts of the
type the Business is eligible to bid on or participate in, respectively, on
the Effective Date (any of the matters described in this clause (ii) being
referred to as "Adverse Clearance Status"), and such FOCI or Adverse
Clearance Status is not a result of a change in (A) the ownership of ▇▇▇▇▇▇
or LBHI from the ownership thereof as it exists as of the Effective Date or
(B) applicable law, regulations and decrees as in effect as of the Effective
Date, ▇▇▇▇▇▇ and/or LBHI may, within 60 days of becoming aware of such
notification, upon delivery of a written notice (a "Regulatory Event Notice")
to the Company, require the Company (i) to repurchase (the "Put") such
portion of the Shares then held by ▇▇▇▇▇▇ and/or LBHI required to eliminate
such FOCI or Adverse Clearance Status (the "Regulatory Portion") for an
amount in cash equal to the fair market value of the shares subject to the
Put as determined by an investment bank of national reputation which is
mutually acceptable to the Company (as determined by the Board of Directors
of the Company without the participation by any directors designated by
▇▇▇▇▇▇ pursuant to this Agreement) and ▇▇▇▇▇▇ or (ii) to commence a Public
Offering which shall include the registration and offering of the Regulatory
Portion in accordance with the registration procedures contained in Exhibit
C; provided, that prior to delivery of any Regulatory Event Notice ▇▇▇▇▇▇
and/or LBHI shall have complied with Section 4.4; and provided further, that
the Company shall not be required to take any action under this Section 4.3
that it is prohibited from taking under the terms of any of its financing
agreements or under applicable law.
Section 4.4. Regulatory Compliance. (a) If any of the
circumstances described in Section 4.3 occur and would (x) cause the Company
to be under FOCI or (y) result in Adverse Clearance Status and such FOCI and
Adverse Clearance Status, if any, may be eliminated to the complete
satisfaction of all applicable U.S. government departments, agencies or
authorities solely by the adoption by ▇▇▇▇▇▇ or LBHI or the Board of
Directors of the Company of governance procedures or board resolutions
insulating the Company from impermissible control or influence of any foreign
entity in accordance with the National Industrial Security Program Operating
Manual (DOD 5220.22M), then ▇▇▇▇▇▇ or LBHI or the Board of Directors of the
Company, shall adopt such procedures or board resolutions, provided that such
procedures and/or board resolutions do not contravene and are consistent with
applicable law and do not materially and adversely affect the governance and
other rights (whether exercised directly or in accordance with such
procedures) of ▇▇▇▇▇▇ or LBHI contained in this Agreement and the Charter
Documents and any other agreements or documents relating thereto.
(b) If such FOCI and Adverse Clearance Status, if any, are not
eliminated following compliance with paragraph (a) above, and such FOCI and
Adverse Clearance Status, if any, may be eliminated by a Transfer of Shares
held by ▇▇▇▇▇▇ or LBHI to an Affiliate, ▇▇▇▇▇▇ or LBHI, as the case may be,
shall use its reasonable efforts to effectuate such Transfer, provided that
any such Transfer shall not contravene, and is made in compliance with,
▇▇▇▇▇▇'▇ and/or LBHI's customary business practices.
(c) If there is a change in the ownership of ▇▇▇▇▇▇ from the
ownership thereof as it exists as of the Effective Date and such change in
ownership causes the Company to be under impermissible FOCI or otherwise
results in an Adverse Clearance Status, and such FOCI or Adverse Clearance
Status, as the case may be, cannot be eliminated through the procedures
contemplated by Section 4.4(a) or Section 4.4(b), the Company shall have the
option, exercisable within 30 days after it concludes that the measures
contemplated by Section 4.4(a) and Section 4.4(b) are not sufficient to
eliminate the FOCI or Adverse Clearance Status, to purchase (the "Call") the
Regulatory Portion of the Shares then held by ▇▇▇▇▇▇ and/or LBHI for an
amount in cash equal to the fair market value of the Shares subject to the
Call as determined by an investment bank of national reputation which is
mutually acceptable to the Company (as determined by the Board of Directors
of the Company without the participation by any directors designated by
▇▇▇▇▇▇ pursuant to this Agreement) and ▇▇▇▇▇▇.
Section 4.5. Standstill Agreement. Lockheed ▇▇▇▇▇▇ agrees that it
will not, and it will cause its Permitted Transferees not to, directly or
indirectly (through Affiliates or otherwise), acquire any shares of Common
Stock if immediately following such acquisition of shares of Common Stock,
Lockheed ▇▇▇▇▇▇ and its Affiliates would own more than 34.9% of the
outstanding shares of Common Stock; provided that this Section 4.5 shall not
limit any of Lockheed ▇▇▇▇▇▇'▇ rights under Section 2.5 or Section 4.1 of
this Agreement.
Section 4.6. Certain Other Agreements. If at any time prior
to Payment in Full of the Preference Amount a merger or other similar
transaction is consummated pursuant to which 90% or more of the outstanding
equity interests in the Company are acquired by a Person other than an
Affiliate of ▇▇▇▇▇▇ at a price per share which is less than $6.47 (an
"Acquisition Transaction"), then each of the Stockholders agrees to enter
into such other agreements or other arrangements as may be required in order
that the proceeds to the Stockholders from such Acquisition Transaction are
distributed as among the holders of each class of Common Stock in a manner
comparable to the manner in which such proceeds would be distributed in a
distribution of assets of the Company in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company in
accordance with the terms of the Certificate of Incorporation.
ARTICLE V
CERTAIN VOTING AGREEMENTS
Section 5.1. Board of Directors of the Company. (a) The
Company's Board of Directors shall be initially composed of eleven members.
▇▇▇▇▇▇ shall be entitled, but not required, to designate six members (the
"▇▇▇▇▇▇ Nominees") of the Board of Directors. Lockheed ▇▇▇▇▇▇ shall be
entitled, but not required, to designate three members (the "Lockheed ▇▇▇▇▇▇
Nominees") of the Board of Directors. In addition, each of ▇▇▇▇▇ and ▇▇▇▇▇▇▇
shall be entitled, but not required, to designate themselves as members of
the Board of Directors for so long as they are employees of the Company or
any of its Subsidiaries (the "▇▇▇▇▇ Nominee" and "▇▇▇▇▇▇▇ Nominee",
respectively).
(b) (i) Each of the Stockholders agrees to vote all of the Shares
of Class A Common Stock owned or held of record by such Stockholder at any
regular or special meeting of the stockholders of the Company called for the
purpose of filling positions on the Board of Directors, or in any written
consent executed in lieu of such a meeting of stockholders, and agrees to
take all actions otherwise necessary, to ensure the election to the Board of
Directors of the ▇▇▇▇▇▇ Nominees, the Lockheed ▇▇▇▇▇▇ Nominees, the ▇▇▇▇▇
Nominee and the ▇▇▇▇▇▇▇ Nominee in accordance with the terms hereof.
(ii) Each of the Company and each Stockholder hereby agrees to use
its or his best efforts to call, or cause the appropriate officers and
directors of the Company to call, a special meeting of stockholders of the
Company and to vote all of the Shares of Class A Common Stock owned or held
of record by such Stockholder for, or to take all actions by written consent
in lieu of any such meeting necessary to cause, the removal (with or without
cause) of (i) any ▇▇▇▇▇▇ Nominee if ▇▇▇▇▇▇ requests such director's removal
for any reason and (ii) any Lockheed ▇▇▇▇▇▇ Nominee if Lockheed ▇▇▇▇▇▇
requests such director's removal for any reason. ▇▇▇▇▇▇ and Lockheed ▇▇▇▇▇▇
shall have the right to designate a new nominee in the event any ▇▇▇▇▇▇
Nominee or Lockheed ▇▇▇▇▇▇ Nominee, respectively, shall be so removed or
shall vacate his or her directorship for any reason.
(c) Except as provided in Section 5.1(b)(ii) hereof, each
Stockholder hereby agrees that, at any time that it or he is then entitled to
vote for the election or removal of directors, it will not vote in favor of
the removal of any ▇▇▇▇▇▇ Nominee, Lockheed ▇▇▇▇▇▇ Nominee, ▇▇▇▇▇ Nominee or
▇▇▇▇▇▇▇ Nominee, unless such removal shall be for Cause. For the purposes of
this Section 5.1(c), "Cause" shall mean (i) as to any ▇▇▇▇▇▇ Nominee or
Lockheed ▇▇▇▇▇▇ Nominee, the gross neglect of or willful and continuing
refusal to substantially perform his duties as a director, the willful
engaging by a director in conduct which is demonstrably and materially
injurious to the Company or the director's conviction of any crime
constituting a felony and (ii) as to any Management Investor, gross neglect
of or willful and continuing refusal to substantially perform his duties as a
director or employee, any breach of the restrictive covenants contained in
such Management Investor's employment agreement with the Company or any of
its Subsidiaries, willful engaging in conduct which is demonstrably injurious
to the Company or the Company's subsidiaries or affiliates or conviction or
plea of guilty or nolo contendere to a felony or a misdemeanor involving
moral turpitude.
(d) The number of directors which ▇▇▇▇▇▇ and Lockheed ▇▇▇▇▇▇ have
the right to designate pursuant to Section 5.1(a) shall be reduced from time
to time to take into account any reduction in ▇▇▇▇▇▇'▇ and Lockheed ▇▇▇▇▇▇'▇
(in either case, together with its Permitted Transferees) ownership level in
the issued and outstanding shares of Common Stock so that the percentage of
the total number of directors designated by each such party corresponds as
nearly as practicable to the percentage ownership of such party (with its
Permitted Transferees) of the issued and outstanding shares of Common Stock;
provided that so long as ▇▇▇▇▇▇ (with its Permitted Transferees) continues to
own at least 35% of the issued and outstanding Common Stock, the directors
designated by ▇▇▇▇▇▇ pursuant to Section 5.1(a) shall constitute a majority
of the Board of Directors so long as ▇▇▇▇▇▇ (with its Permitted Transferees)
continues to represent the largest single stockholder of the Company. The
Stockholders' obligations under Section 5.1(b) and (c) shall remain in effect
with respect to the ▇▇▇▇▇▇ Nominees and Lockheed ▇▇▇▇▇▇ Nominees, as reduced
pursuant to the preceding sentence.
(e) The rights of ▇▇▇▇▇▇, Lockheed ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ to
designate Board members under Section 5.1(a) shall not be assignable
(including to any Transferee of Shares).
Section 5.2. Charter Documents. (a) Exhibits A and B set forth
copies of the Certificate of Incorporation and By-laws of the Company, each
in the form in which it is to be in effect on the Effective Date (the
"Charter Documents").
(b) The Company covenants and agrees that it will act in
accordance with the Charter Documents. Each Stockholder covenants and agrees
that it will vote all the Shares owned or held of record by such Stockholder
at any regular or special meeting of stockholders of the Company or in any
written consent executed in lieu of such a meeting of stockholders, and shall
take all action necessary, to ensure that the Charter Documents do not, at
any time, conflict with the provisions of this Agreement.
Section 5.3. Consent to an Initial Public Offering; Required IPO.
(a) Prior to the first anniversary of the Effective Date, the Company shall
not commence an Initial Public Offering without the affirmative vote of (i) a
majority of the ▇▇▇▇▇▇ Nominees, (ii) a majority of the Lockheed ▇▇▇▇▇▇
Nominees, (iii) the ▇▇▇▇▇ Nominee and (iv) the ▇▇▇▇▇▇▇ Nominee.
(b) At any time on or after the fifth anniversary of the Effective
Date, if an Initial Public Offering shall not have been consummated prior to
such date, ▇▇▇▇▇▇ or Lockheed ▇▇▇▇▇▇ (in each case, provided that it and its
Permitted Transferees then own at least 50% of the issued and outstanding
Common Stock owned by such party on the Effective Date) may require the
Company promptly to commence an Initial Public Offering and to complete such
Initial Public Offering as soon as reasonably practicable in accordance with
the registration procedures contained in Exhibit C. The rights of ▇▇▇▇▇▇
and Lockheed ▇▇▇▇▇▇ under this Section 5.3(b) shall not be assignable
(including to any Transferee of Shares).
ARTICLE VI
TERMINATION
Section 6.1. Termination. The provisions of this Agreement, other
than Sections 2.8, 4.2 and 4.5 shall terminate upon the consummation of an
Initial Public Offering. Section 2.8 and the registration rights contained
in Exhibit C shall continue to apply following such consummation with respect
to all Registrable Securities (as defined in Exhibit C) in accordance with
the terms thereof. Section 4.2 shall continue to apply following the
consummation of an Initial Public Offering until the earlier of the
expiration of the Exclusivity Period or the date on which ▇▇▇▇▇▇ (together
with its Permitted Transferees) ceases to own at least 10% of the outstanding
shares of Common Stock. Section 4.5 shall continue to apply following such
consummation until the fifth anniversary of the Effective Date.
ARTICLE VII
MISCELLANEOUS
Section 7.1. No Inconsistent Agreements. The Company will not
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Stockholders in this Agreement.
Section 7.2. Recapitalization, Exchanges, etc. In the event that
any capital stock or other securities are issued in respect of, in exchange
for, or in substitution of, any Shares by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial
or complete liquidation, stock dividend, split-up, sale of assets,
distribution to stockholders or combination of the Shares or any other change
in capital structure of the Company, appropriate adjustments shall be made
with respect to the relevant provisions of this Agreement so as to fairly and
equitably preserve, as far as practicable, the original rights and
obligations of the parties hereto under this Agreement and the term "Shares,"
as used herein, shall be deemed to include shares of such capital stock or
other securities, as appropriate.
Section 7.3. Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto, and their
respective successors and permitted assigns.
Section 7.4. No Waivers, Amendments. (a) No failure or delay by
any party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
(b) No amendment, modification or supplement to this Agreement
shall be enforced against any holder unless such amendment, modification or
supplement is signed by (i) where such holder is ▇▇▇▇▇▇ or LBHI or one of
their Permitted Transferees, a majority of the Shares held by ▇▇▇▇▇▇ and LBHI
and its Permitted Transferees, (ii) where such holder is Lockheed ▇▇▇▇▇▇ or
one of their Permitted Transferees, a majority of the Shares held by Lockheed
▇▇▇▇▇▇ and its Permitted Transferees, (iii) where such holder is ▇▇▇▇▇ or one
of his Permitted Transferees, a majority of the Shares held by ▇▇▇▇▇ and his
Permitted Transferees and (iv) where such holder is ▇▇▇▇▇▇▇ or one of his
Permitted Transferees, a majority of the Shares held by ▇▇▇▇▇▇▇ and his
Permitted Transferees.
(c) Any provision of this Agreement may be waived if, but only if,
such waiver is in writing and is signed by the party against whom the
enforcement of such waiver is sought.
Section 7.5. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including telex,
telecopier or similar writing) and shall be given to such party at its
address, telex or telecopier number set forth below, or such other address,
telex or telecopier number as such party may hereinafter specify for the
purpose to the party giving such notice. Each such notice, request or other
communication shall be effective (i) if given by telex or telecopy, when such
telex or telecopy is transmitted to the telex or telecopy number specified in
this Section and the appropriate answerback is received or, (ii) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid or, (iii) if given by any other
means, when delivered at the address specified in this Section 7.5.
Notices to the Company shall be addressed to the Company at L-3
Communications Holdings, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇) with a copy
thereof to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (telecopier (▇▇▇) ▇▇▇-▇▇▇▇); notices
to ▇▇▇▇▇▇ or LBHI shall be addressed to ▇▇▇▇▇▇ Brothers Capital Partners III,
L.P. or ▇▇▇▇▇▇ Brothers Holdings Inc., as the case may be, 3 World Financial
Center, New York, New York 10285, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (telecopier
(▇▇▇) ▇▇▇-▇▇▇▇) with a copy thereof to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(telecopier (▇▇▇) ▇▇▇-▇▇▇▇); notices to Lockheed ▇▇▇▇▇▇ shall be addressed to
Lockheed ▇▇▇▇▇▇ at Lockheed ▇▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (telecopier (301)
897-6083) with a copy thereof to Lockheed ▇▇▇▇▇▇ Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (telecopier
(▇▇▇) ▇▇▇-▇▇▇▇) and to Miles & Stockbridge, a Professional Corporation, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
(telecopier (▇▇▇) ▇▇▇-▇▇▇▇); notices to ▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall be addressed
to ▇▇▇▇▇ and ▇▇▇▇▇▇▇, respectively, at L-3 Communications Holdings, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopier (▇▇▇) ▇▇▇-▇▇▇▇, as to
▇▇▇▇▇ and (▇▇▇) ▇▇▇-▇▇▇▇, as to ▇▇▇▇▇▇▇) with a copy thereof to Fried, Frank,
Harris, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (telecopier (▇▇▇) ▇▇▇-▇▇▇▇).
Section 7.6. Inspection. So long as this Agreement shall be in
effect, this Agreement and any amendments hereto shall be made available for
inspection by a Stockholder at the principal offices of the Company.
SECTION 7.7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7.8. Section Headings. The section headings contained in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
Section 7.9. Entire Agreement. This Agreement, together with the
Subscription Agreements, constitutes the entire agreement and understanding
among the parties hereto and supersedes any and all prior agreements and
understandings, written or oral, relating to the subject matter hereof.
Section 7.10. Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdictions, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
Section 7.11. Counterparts. This Agreement may be signed in
counterparts, each of which shall constitute an original and which together
shall constitute one and the same agreement.
Section 7.12. Option Plan. Each of the Stockholders agrees to
vote all of the Shares of Class A Common Stock owned or held of record by
such Stockholder at any regular or special meeting of the stockholders of the
Company called for the purpose of approving the Option Plan or in any written
consent executed in lieu of such a meeting of stockholders (and the Company
agrees to use reasonable efforts to cause such meeting to occur promptly),
and agrees to take all actions otherwise necessary, to ensure the approval of
the Option Plan in accordance with the terms hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date set forth above.
L-3 COMMUNICATIONS
HOLDINGS, INC.
By:_________________________________
Title:
LOCKHEED ▇▇▇▇▇▇ CORPORATION
By:_________________________________
Title:
▇▇▇▇▇▇ BROTHERS CAPITAL
PARTNERS III, L.P.
By: ▇▇▇▇▇▇ Brothers Holdings Inc.,
its general partner
By:_________________________________
Title:
▇▇▇▇▇▇ BROTHERS HOLDINGS INC.
By:_________________________________
Title:
____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
EXHIBIT D
FORM OF AGREEMENT TO BE BOUND
[DATE]
To the Parties to the
Stockholders Agreement
dated as of April 30, 1997
Dear Sirs:
Reference is made to the Stockholders Agreement dated as of April 30,
1997 (the "Stockholders Agreement"), among L-3 Communications Holdings, Inc.,
Lockheed ▇▇▇▇▇▇ Corporation, ▇▇▇▇▇▇ Brothers Capital Partners III, L.P.,
▇▇▇▇▇▇ Brothers Holdings Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and each
other Stockholder who or which shall become parties to the Stockholders
Agreement as provided therein. Capitalized terms used herein and not defined
have the meanings ascribed to them in the Stockholders Agreement.
In consideration of the representations, covenants and agreements
contained in the Stockholders Agreement, the undersigned hereby confirms and
agrees that it shall be bound by all of the provisions thereof.
This letter shall be construed and enforced in accordance with the
laws of the State of New York.
Very truly yours,
[Permitted Transferee]