EXHIBIT 10.39
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated March 10, 1998, by and
between LOGIMETRICS, INC., a Delaware corporation (the "Company"), and XXXXXXX
X. XXXXXXX XX (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has agreed to grant to the Executive an option to
purchase common stock of the Company in recognition of the Executive's
performance of past services;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee the
option (the "Option") to purchase One Hundred Three Thousand Three Hundred
Thirty Three (103,333) shares (the "Option Shares") of the common stock, par
value $.01 per share (the "Common Stock"), of the Company at an exercise price
of $0.55 per share (the "Exercise Price").
2. Terms Governing Exercise of Option. The Option becomes exercisable
upon the occurrence of the Effective Date (as such term is defined in the
Agreement, dated March 10, 1998, by and between the Company and the Optionee
(the "Severance Agreement")) and shall expire and cease to be exercisable on
February 27, 1999, or on such earlier date as provided herein. The Option may be
exercised from time to time as to all or part of the Option Shares. In order to
exercise the Option, the Optionee must provide written notice to the Company of
his election, setting forth the number of whole Option Shares with respect to
which the Option is being exercised, and accompanied by payment of the full
Exercise Price for the number of Option Shares being purchased.
3. Termination of Option. In the event that the Company terminates the
Severance Agreement as the result of a material breach of the terms thereof by
the Optionee, the Option shall immediately terminate and be of no further force
and effect.
4. Non-Assignability. No rights granted to the Optionee hereunder are
assignable or transferable (whether by operation of law or otherwise and whether
voluntarily or involuntarily) other than pursuant to the laws of descent and
distribution. During the life of the Optionee, all rights granted to the
Optionee hereunder may be exercised only by the Optionee.
5. Effect on Optionee's Status. Nothing contained herein shall confer
upon the Optionee the right to continue in the service of the Company, its
subsidiaries or their respective affiliates, or affect any right that the
Company, its subsidiaries or their respective affiliates may have to terminate
the Optionee's services.
6. Conditions of Purchase. The Option is granted on the condition that
the purchase of the Option Shares upon the exercise of the Option shall be for
investment purposes and not with a view to resale or distribution. The foregoing
condition shall be inoperative if the Option Shares are registered for sale
under the Securities Act of 1933, as amended (the "Securities Act"), and
applicable state securities laws or if in the opinion of counsel for the
Company, the Option Shares may be resold without such registration. At the time
of the exercise of the Option or any part thereof, the Optionee shall execute
such further agreements as the Company may require to implement the foregoing
condition and to acknowledge the Optionee's familiarity with restrictions on the
resale of the Option Shares under then applicable securities laws. Upon the
Optionee's request, the Company shall furnish copies of such publicly available
financial and other information concerning the Company and its business and
prospects as may be reasonably requested by the Optionee in connection with the
exercise of this Option.
7. Withholding. The Optionee agrees that the exercise of the Option in
whole or in part will not be effective, and no Option Shares will become
transferable to the Optionee, until the Optionee makes appropriate arrangements
with the Company for such income and other payroll tax withholding as may be
required of the Company under federal, state, or local law on account of such
exercise.
8. Capital Structure Adjustments. The number of shares and Exercise
Price covered by the unexercised portion of the Option shall be proportionately
adjusted for any increase or decrease in the number of outstanding shares of
Common Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock. Any such adjustment shall
be made without change in the aggregate purchase price applicable to the
unexercised portion of the Option and shall be made by the board of directors
whose determination in that respect shall be final, binding and conclusive. In
making any adjustment pursuant to this Section 8, fractional shares shall be
disregarded. Except as expressly provided herein, no issuance by the Company of
shares of stock of any class or securities convertible into shares of stock of
any class shall effect, and no adjustment by reason thereof shall be made, with
respect to the number or price of shares of Common Stock covered by the Option.
9. Dissolution; Merger; Sale of Assets. In the event of the proposed
dissolution or liquidation of the Company, the Company shall notify the Optionee
at least fifteen days prior to such proposed action. To the extent that it has
not been previously exercised, the Option will terminate immediately prior to
the consummation of such proposed action. In the event of a merger of the
Company with or into another corporation or the sale of all or substantially all
of the assets of the Company, the Option shall be assumed or an equivalent
option shall be substituted by a successor corporation or a parent or a
subsidiary of such successor corporation. In the event that such successor
corporation does not agree to assume the option or to substitute an equivalent
option, the board of directors shall notify the Optionee that the Option shall
be fully exercisable for a period of at least fifteen (15) days from the date of
such notice and the Option will terminate upon the later of the expiration of
such period or the consummation of the merger.
10. No Rights as a Stockholder. The Optionee shall not have any rights
as a stockholder or any claim to dividends with respect to any Option Shares
until the proper exercise of the Option as required hereby, the payment of the
Purchase Price and the issuance by the Company of a stock certificate for the
Option Shares so purchased.
11. Optionee Acknowledgments. The Optionee agrees and acknowledges
that (i) no member of the board of directors of the Company or any other person
or entity shall be liable for any action or determination made in good faith
with respect to the Option, (ii) the Option granted hereby is not intended to
qualify as an incentive stock option under section 422A of the Internal Revenue
Code of 1986, as amended, and (iii) the Company makes no representation as to
the tax treatment to the Optionee upon receipt or exercise of the option or sale
or other disposition of the shares covered by the Option.
12. Registration Rights. The Optionee shall be entitled to the same
registration rights with respect to the Option Shares as are set forth in
Section 11 of the Option Agreement, dated May 5 1996, between the Optionee and
the Company as if such provisions were set forth herein at length.
13. Notices. Any notice given to the Company hereunder shall be in
writing and shall be addressed to the Secretary of the Company at its principal
executive office, or at such other address as the Company may hereafter
designate to the Optionee by notice as provided herein. Any notice given to the
Optionee hereunder shall be in writing and shall be addressed to the Optionee at
the address set forth in the employee records of the Company, or at such other
address as the Optionee may hereafter designate to the Company by notice as
provided herein. Notices shall be deemed to have been duly given when personally
delivered or three (3) days after being mailed by registered or certified mail
to the party entitled to receive the same.
14. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto pertaining to the subject matter hereof and supersedes
all other prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the parties. Other than the Severance
Agreement, there are no other agreements between the parties in connection with
the subject matter hereof. In the event that the terms of this Agreement are
inconsistent with the terms of the Severance Agreement regarding the subject
matter hereof, then the terms of this Agreement shall govern.
15. Governing 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 principals thereof.
16. Assignment; Successors and Assigns; No Third Party Rights. This
Agreement may not be assigned by the Optionee and any attempt at assignment by
the Optionee shall be null and void. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
permitted assigns and legal representatives. This Agreement shall be for the
sole benefit of the parties hereto and their respective successors, permitted
assigns and legal representatives and is not intended, nor shall it be
construed, to give any person other than the parties hereto and their respective
successors, permitted assigns and legal representatives any legal or equitable
right, remedy or claim.
17. Amendment and Modification; Waiver. This Agreement may only be
amended or modified in a writing signed by the party against whom enforcement of
such amendment or modification is sought. Any of the terms or conditions of this
Agreement may be waived at any time by the party entitled to the benefit
thereof, but only by a writing signed by the party waiving such terms or
conditions.
18. No Strict Construction. Each of the parties hereto acknowledge
that this Agreement has been prepared jointly by the parties hereto and their
respective counsel, and this Agreement shall not be strictly construed against
either party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
LOGIMETRICS, INC.
By:/s/Xxxxxx X. Xxxxxx
__________________________________
Xxxxxx X. Xxxxxx, President and Chief
Operating Officer
/s/Xxxxxxx X. Xxxxxxx XX
__________________________________
Xxxxxxx X. Xxxxxxx XX
