AGREEMENT
AGREEMENT made as of this 27 day of September, 2006 by and between HERLEY
INDUSTRIES, INC., a Delaware corporation, with its principal office located at
101 North Pointe Boulevard, Lancaster, Pennsylvania 17601 (the "Company") and
LEE N. BLATT, residing at 734 Yokum Pond Road, Becket, Massachusetts 01223
("Blatt").
WHEREAS, Blatt, a founder of the Company, has been its Chairman for
approximately 41 years; and
WHEREAS, the Company and Blatt entered into an employment agreement dated
as of July 29, 2002, as modified on December 3, 2003 (the "Employment
Agreement") which amended and restated in its entirety his prior employment
agreements; and
WHEREAS, on June 6, 2006 the Company and Blatt were indicted on multiple
charges in connection with three government contracts completed in October 2002
aggregating revenue of approximately $3.9 million (the "Indictment"); and
WHEREAS, on June 8, 2006, as a result of the Indictment, Blatt voluntarily
resigned his positions as Chairman and director of the Company; and
WHEREAS, on June 9, 2006 the U.S. Government as a consequence of the
Indictment, suspended the Company from engaging in any new business with the
U.S. Government in its principal manufacturing facilities located in Lancaster,
Pennsylvania, Farmingdale, New York and Woburn, Massachusetts ("Manufacturing
Facilities"); and
WHEREAS, the Company has been negotiating with the U.S. Government for
purposes of entering into an administrative order removing these suspensions
("Administrative Order") in order to enable the Manufacturing Facilities to
enter into new contracts with the U.S. Government; and
WHEREAS, as a condition to entering into the Administrative Order, the U.S.
Government has mandated that the Company terminate its employee relationship
with Blatt; and
WHEREAS, under the Employment Agreement, the only basis for termination by
the Company would be "without cause" which would result in an immediate lump sum
payment to Blatt of $9,461,528 in addition to other substantial benefits; and
WHEREAS, after negotiations between the Company's Compensation Committee
and Blatt, Blatt has agreed to terminate the Employment Agreement on terms more
beneficial to the Company than otherwise mandated under its terms, including a
long-term payout without interest.
WHEREAS, this agreement shall be effective only upon the effective date of
the Administrative Order ("Effective Date").
NOW, THEREFORE, based upon the mutual covenants contained herein and for
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the Company and Blatt agree as follows:
1. In full satisfaction of all prior, current and future obligations to
Blatt under the Employment Agreement or otherwise, whether accrued or otherwise
(except for rights of, or obligations to, Blatt or his affiliates in connection
with his or their ownership of the Company's equity securities "Ownership
Rights") the parties hereby agree as follows:
(a) On the Effective Date, Blatt shall receive a lump sum payment in the
sum of $3,000,000.00 and shall thereafter receive the monthly sum of $100,000.00
commencing on January 1, 2007 and continuing thereafter on the first day of each
month for sixty-four (64) consecutive months through April 1, 2012 and the sum
of $61,528.00 on May 1, 2012,, as more fully set forth in the non-interest
bearing promissory note annexed hereto as "Exhibit A" and incorporated by
reference herein ("Promissory Note").
(b) Blatt shall receive his annual bonus for the fiscal year ended July 31,
2006 in accordance with the terms of paragraph 4 of the Employment Agreement.
(c) Blatt shall continue to receive medical care reimbursement and
insurance, including life insurance payments, in accordance with the terms of
paragraphs 9(b) and 10(f)(ii)(C) of the Employment Agreement.
(d) With respect to any outstanding options previously issued to Blatt, it
is hereby acknowledged that all of such options are currently vested and
exercisable and that such options shall continue to be exercisable by him or,
following his death, by his designated beneficiaries, on or before the
expiration date of the specific option, i.e., all five (5) year options shall be
exercisable on or before five years from date of grant and all ten (10) year
options shall be exercisable on or before ten years from date of grant.
2. In the event of a "change of control" of the Company as defined in
paragraph 1(d) of the Employment Agreement, all remaining payments under the
Promissory Note shall immediately become due and payable.
3. (a) Blatt covenants, represents and agrees that the provisions of
paragraph 14 of the Employment Agreement shall survive this agreement and
continue in full force and effect.
(b) Blatt covenants, represents and agrees that during the period he
receives payments hereunder and for a period of one year thereafter, and
provided the Company is not in breach of this agreement, he shall abide by and
fully comply with the provisions of paragraph 15 of the Employment Agreement,
which is hereby modified by deleting subsection (c)(i) thereof.
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(c) The provisions of Paragraphs 16 (Remedies/Sanctions), 17
(Beneficiaries/References), 19 (Indemnification and Liability Insurance) and 21
(Assignability; Binding Nature) of the Employment Agreement shall survive this
agreement and are fully incorporated by reference herein and made applicable to
the provisions therein.
(d) The provisions of Paragraph 12 (Parachutes) of the Employment Agreement
shall survive this agreement and are fully incorporated by reference herein and
made applicable to all or any portion of the payments to be made to Blatt under
this agreement and/or any other payments and benefits that Blatt receives or is
entitled to receive from the Company.
(e) The provisions of the Indemnification Agreement between the Company and
Blatt made and entered into on May 21, 2003 (the "Indemnification Agreement")
shall survive this agreement and shall apply to Blatt after termination of his
employment with the Company, and are fully incorporated by reference herein.
4. (a) Subject only to the performance of and compliance by the Company
with the provisions of this agreement, and except for the Company's continuing
indemnification obligations under applicable law, the Employment Agreement and
the Indemnification Agreement, Blatt hereby waives, remits, releases and forever
discharges the Company, its past, present and future Board members, officers,
directors, stockholders, employees, agents, attorneys, subsidiaries, servants,
successors, insurers, affiliates and their successors and assignees, from any
and all manner of action, claims, liens, demands, liabilities, causes of action,
charges, complaints, suits (judicial, administrative, or otherwise), damages,
debts, demands, obligations of any other nature, past or present, known or
unknown, whether in law or in equity, whether founded upon contract (expressed
or implied), tort (including, but not limited to, defamation), statute or
regulation (State, Federal or local), common law and/or any other theory or
basis, from the beginning of the world to the date hereof, including, but not
limited to, any claim that Blatt has asserted, now asserts or could have
asserted. This includes, but is not limited to, claims for compensation or
benefits, tortious claims arising out of the consulting relationship, claims of
an expressed or implied contract of employment, claims under the Family and
Medical Leave Act, claims arising under Federal, State or local laws prohibiting
employment or other discrimination or claims growing out of any legal
restrictions on the Company's rights to terminate its employees, including
without limitation any claims arising under Title VII of the United States Code,
and the Age Discrimination in Employment Act. It is expressly understood by
Blatt that among the various rights and claims being waived by him in this
release are those arising under the Age Discrimination in Employment Act of 1967
(29 U.S.C. Sec. 621, et seq.).
(b) Subject only to the performance of, and compliance with, the provisions
of this agreement, and except as prohibited under applicable law, the Company,
hereby waives, remits, releases and forever discharges Blatt and his successors
and assignees, from any and all manner of action, claims, liens, demands,
liabilities, causes of action, charges, complaints, suits (judicial,
administrative, or otherwise), damages, debts, demands, obligations of any other
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nature, past or present, known or unknown, whether in law or in equity, whether
founded upon contract (expressed or implied), tort (including, but not limited
to, defamation), statute or regulation (State, Federal or local), common law
and/or any other theory or basis, from the beginning of the world to the date
hereof.
5. The Company and Blatt respectively represent and warrant that each is
fully authorized and empowered to enter into this agreement and that the
performance of its or his obligations, as the case may be, under this agreement
will not violate any agreement between such party and any other person, firm or
organization. The Company represents and warrants that this agreement has been
duly authorized by all necessary corporate action and is valid, binding and
enforceable in accordance with its terms.
6. Except to the extent otherwise provided herein, this agreement contains
the entire understanding and agreement between the Company and Blatt concerning
the subject matter hereof and supersedes any prior agreements, whether written
or oral, between the parties concerning the subject matter hereof, including
without limitation the Employment Agreement.
7. No provision in this agreement may be amended unless such amendment is
agreed to in writing and signed by both Blatt and an authorized officer of the
Company. No waiver by either party of any breach by the other party of any
condition or provision contained in this agreement to be performed by such other
party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the party to be charged with the waiver. No delay by either party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof.
8. In the event that any provision or portion of this agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
9. This agreement shall be governed by and construed and interpreted in
accordance with the laws of New York, without regard to its governing conflicts
of law principles.
10. Any notice given to either party including notice under the Promissory
Note, shall be in writing and shall be deemed to have been given when delivered
either personally, by overnight delivery service (such as Federal Express) or
sent by certified or registered mail postage prepaid, return receipt requested,
duly addressed to the party concerned at the address indicated below or to such
changed address as the party may subsequently give notice of.
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If to Herley or the Board:
Herley Industries, Inc.
101 North Pointe Boulevard
Lancaster, Pennsylvania 17601-4133
Fax No. 717-297-9503
Attn: Mr. Myron Levy, Chairman and Chief Executive Officer
With a copy to:
Beckman, Lieberman & Barandes, LLP
116 John Street, Suite 1313
New York, New York 10038
Attn: David H. Lieberman, Esq.
Fax No. 212-608-9687
If to Blatt:
734 Yokum Pond Road
Becket, Massachusetts 01223
And to:
741 North Arrowhead Trail
Vero Beach, FL 32963
11. The headings of the sections contained in this agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this agreement.
12. This agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of
September 27, 2006.
HERLEY INDUSTRIES, INC.
By: /s/ John Kelley
---------------------------------
John Kelley, President
/s/ Lee N. Blatt
---------------------------------
Lee N. Blatt
Exhibit "A"
PROMISSORY NOTE
$6,461,528.00 Lancaster, Pennsylvania
September ___, 2006
FOR VALUE RECEIVED, the undersigned, HERLEY INDUSTRIES, INC. (the
"Company") promises to pay to LEE N. BLATT, or his assigns ("Blatt"), at 734
Yokum Pond Road, Becket, Massachusetts 01223, or at such other place as the
holder of this Note may designate in writing from time to time, the principal
sum of SIX MILLION, FOUR HUNDRED SIXTY ONE THOUSAND, FIVE HUNDRED AND TWENTY
EIGHT DOLLARS ($6,461,528.00).
1. The Company shall pay this Note, without interest, in monthly
installments of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) commencing on January
1, 2007 and continuing thereafter on the 1st day of each month for sixty-four
(64) consecutive months through April 1, 2012 and one monthly installment of
SIXTY ONE THOUSAND, FIVE HUNDRED AND TWENTY EIGHT DOLLARS ($61,528.00) on May 1,
2012. Notwithstanding the foregoing, this Note shall immediately become due and
payable, without notice, in the event of a "change in control" of the Company as
defined under paragraph 1(d) of the Employment Agreement between the Company and
Blatt dated as of July 29, 2002, as modified on December 3, 2003.
2. Under this Note, failure of the Company to pay any amount due and
payable within thirty days after written demand is received by the Company shall
constitute a default. Upon default, Blatt (a) may declare this Note immediately
due and payable in full; and (b) be entitled to exercise against the Company any
and all rights and remedies that may otherwise be available to him hereunder and
at law or in equity.
3. By his acceptance of this Note, Blatt represents and warrants that he is
acquiring this Note for investment, and not with a view to the distribution of
the Note.
4. This Note shall be governed by and construed in accordance with the laws
of the State of New York, excluding therefrom any principles of conflicts of
law; this Note may not be amended or modified except pursuant to a written
instrument executed by each of Blatt (or his assigns upon his death) and the
Company.
5. The Company shall have the right to prepay this Note at any time or from
time to time, in whole or in part, without penalty.
6. This Note is subject to and governed by the terms and conditions of the
Agreement by and between the Company and Blatt dated as of September ___, 2006.
HERLEY INDUSTRIES, INC.
By: ----------------------
John Kelley, President