JOINT FILING AND SOLICITATION AGREEMENT
WHEREAS, certain of the undersigned are shareholders, direct or beneficial,
of Ezenia! Inc., a Delaware Corporation (the 'Company');
WHEREAS, North & Xxxxxxx, LLC, a Delaware limited liability company
('North & Xxxxxxx'), North & Xxxxxxx Value Opportunities Fund, L.P.,
a Delaware limited partnership, Xxxxxx X. Kidston, Xxxxx Xxxxxxx and
Xxxxxx Xxxxxxx, wish to form a group for the purpose of seeking
representation on the Board of Directors of the Company at the 2010
annual meeting of shareholders of the Company, or any other meeting
of shareholders held in lieu thereof, and any adjournments, postponements,
reschedulings or continuations thereof (the '2010 Annual Meeting') and
for the purpose of taking all other action necessary to achieve the foregoing.
NOW, IT IS AGREED, this 6 day of January 2010 by the parties hereto:
1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities
Exchange Act of 1934, as amended (the 'Exchange Act'), each of the
undersigned (collectively, the 'Group') agrees to the joint filing
on behalf of each of them of statements on Schedule 13D, and any
amendments thereto, with respect to the securities of the Company.
Each member of the Group shall be responsible for the accuracy and
completeness of his/its own disclosure therein, and is not responsible
for the accuracy and completeness of the information concerning the
other members, unless such member knows or has reason to know that
such information is inaccurate. North & Xxxxxxx or its representative
shall provide each member of the Group with copies of all Schedule 13D
filings and other public filings to be filed on behalf of such member
at least 24 hours prior to the filing or submission thereof.
2. So long as this agreement is in effect, each of the undersigned
shall provide written notice to North & Xxxxxxx of (i) any of their
purchases or sales of securities of the Company; or (ii) any securities
of the Company over which they acquire or dispose of beneficial ownership.
Notice shall be given no later than 24 hours after each such transaction.
3. Each of the undersigned agrees to form the Group for the purpose
of (i) soliciting proxies or written consents for the election of the
persons nominated by the Group to the Board of Directors of the Company
at the 2010 Annual Meeting, (ii) taking such other actions as the parties
deem advisable, and (iii) taking all other action necessary or advisable
to achieve the foregoing.
4. North & Xxxxxxx shall have the right to pre-approve all expenses
incurred in connection with the Group's activities and agrees to pay
directly all such pre-approved expenses.
5. Each of the undersigned agrees that any SEC filing, press release
or shareholder communication proposed to be made or issued by the Group
or any member of the Group in connection with the Group's activities set
forth in Section 3 shall be first approved by North & Xxxxxxx, or its
representatives, which approval shall not be unreasonably withheld.
6. The relationship of the parties hereto shall be limited to carrying
on the business of the Group in accordance with the terms of this Agreement.
Such relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing herein
shall be construed to authorize any party to act as an agent for any other
party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party's right to purchase
or sell securities of the Company, as he/it deems appropriate, in his/its sole
discretion, provided that all such sales are made in compliance with all
applicable securities laws.
7. This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which, taken together, shall constitute but
one and the same instrument, which may be sufficiently evidenced by one
counterpart.
8. In the event of any dispute arising out of the provisions of this
Agreement or their investment in the Company, the parties hereto consent and
submit to the exclusive jurisdiction of the Federal and State Courts in the
State of New York.
9. Any party hereto may terminate his/its obligations under this Agreement
on 24 hours' written notice to all other parties.
10. Each of the undersigned parties hereby agrees that this Agreement shall
be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii)
under the Exchange Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the day and year first above written.
NORTH & XXXXXXX VALUE OPPORTUNITIES FUND, LP
By:
North & Xxxxxxx, LLC,
its General Partner
By:
/s/ Xxxxxx X. Kidston
Name:
Xxxxxx X. Kidston
Title:
Managing Member
NORTH & XXXXXXX, LLC
By:
/s/ Xxxxxx X. Kidston
Name:
Xxxxxx X. Kidston
Title:
Managing Member
Xxxxxx X. Kidston
/s/ Xxxxxx X. Kidston
XXXXX Xxxxxxx
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxx
