Exhibit 10.6
THIS OPTION AND THE SHARES DESCRIBED HEREIN HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES ACT OF ANY
STATE OR OTHER JURISDICTION. NO SALE, OFFER TO SELL, OR OTHER TRANSFER OF
THIS OPTION OR THE SHARES DESCRIBED HEREIN MAY BE MADE BY THE HOLDER OF
THIS OPTION OR SUCH SHARES UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, OR UNLESS, IN THE OPINION OF COUNSEL TO THE COMPANY, THE
PROPOSED DISPOSITION FALLS WITHIN A VALID EXEMPTION FROM THE REGISTRATION
PROVISIONS OF THOSE ACTS.
OPTION AGREEMENT
This OPTION AGREEMENT (this "Agreement") is made as of the First day of
July, 1994, by and between ESSEX CORPORATION, a Virginia corporation having its
principal office at 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000-0000 (the
"Company"), and XXXXXX ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership, having its principal office at 000 Xxxx Xxxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx, 00000 ("Xxxxxx").
Explanatory Statement
A. Pursuant to the terms of a Settlement Agreement dated of even date
herewith the Company has agreed to grant to Xxxxxx an option to purchase shares
of its capital stock on the terms set forth in this Agreement. This is the
Option Agreement executed and delivered by the Company pursuant to the
Settlement Agreement.
Option
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Xxxxxx agree as follows.
1. Grant of Option. The Company hereby grants to Xxxxxx an option (the
"Option") to purchase from the Company, in whole or in part, at an initial
purchase price of $2.00 per share, at any time on or after the date hereof to
and including December 31, 2004 (the "Final Exercise Date"), 125,000 shares of
the Company's Common Stock, $0.10 par value, subject, however, to the provisions
and upon the terms and conditions hereinafter set forth.
2. (a) Exercise of Option. The Option may be exercised by the holder
hereof, in whole or in part, at any time and from time to time on or after
December 1, 1994, (the "Commencement Date"), to and including the Final Exercise
Date; provided, however, that
Xxxxxx shall have no right to exercise an Option for less than 10,000 shares of
the Company's stock at any one time unless (i) the Company otherwise agrees or
(ii) less than 10,000 shares then remain subject to option by Xxxxxx under this
Agreement. The Option may be exercised by the holder hereof by (i) the delivery
of a properly completed Subscription Form in the form attached hereto, to the
principal office of the Company at 0000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000-0000 (or such other office or agency of the Company as it may designate by
notice in writing to the holder hereof) and (ii) payment to the Company, by cash
or by certified check or bank draft, of the Option Exercise Price for the Option
Shares being purchased. The Company agrees that the Option Shares (including,
without limitation, any fractional shares) so purchased shall be deemed to be
issued to the holder hereof as the record owner of such Option Shares as of the
close of business on the date on which the Subscription Form shall have been
delivered to the Company and payment made for such Option Shares as aforesaid.
Certificates for the Option Shares so purchased shall be delivered to the holder
hereof within a reasonable time, not exceeding five business days, after the
Option shall have been so exercised. The Company represents and warrants to and
agrees with the holder hereof and the holders of any and all Option Shares
purchased pursuant to the exercise of the Option that each purchase of Option
Shares upon exercise of the Option shall be free of, and there shall not exist,
any and all preemptive, preferential or other rights, options, warrants or
agreements of any nature giving any person the right to acquire from the Company
any shares of capital stock of the Company, except to the extent expressly
disclosed in this Agreement. Without limiting the generality of the foregoing,
the Company agrees to issue any fractional shares of Common Stock with respect
to which the Option is exercised by Xxxxxx in accordance with the terms hereof.
(b) Expenses and Taxes on Exercise. The Company shall pay all
expenses, taxes and other charges payable in connection with the preparation,
execution and delivery of stock certificates pursuant to this Section 2, except
that, in case such stock certificates shall be registered in a name or names
other than the name of Xxxxxx, funds sufficient to pay all stock transfer taxes,
if any, which shall be payable upon the execution and delivery of such stock
certificates shall be paid by Xxxxxx to the Company at the time of delivering
the Subscription Form to the Company upon exercise.
3. (a) Option and Option Shares Not Registered Presently. Xxxxxx, by
acceptance hereof, represents and acknowledges that this Option and the Option
Shares which may be purchased upon exercise of the Option are not being
registered presently under the Securities Act of 1933 or under Maryland
securities laws or pursuant to a valid exemption from such registration on the
grounds that the issuance of this Option and the offering and sale of such
Option Shares are exempt from registration under Section 4(2) of the Securities
Act of 1933 as not involving any public offering and that the Company's reliance
on such exemption is predicated in part on the representations made by the
initial holder of this Option to and with the Company that such holder is
acquiring this Option for investment for its own account, and with no intention
of reselling or otherwise distributing the same. Neither this Option nor the
Option Shares which may be purchased upon exercise of such Option may be
transferred except pursuant to an effective registration statement under the
Securities Act of 1933 or opinion of
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counsel reasonably satisfactory to the Company that such registration and
qualifications are not required.
(b) Transfer Restriction Legend. Each certificate for Option Shares
initially issued upon exercise of the Option unless at the time of exercise such
Option Shares are registered under the Securities Act of 1933, shall bear the
following legend (and any additional legend required by any securities exchange
upon which such Option Shares may, at the time of such exercise, be listed) on
the face thereof:
"The shares of stock represented hereby have not been registered
pursuant to the Securities Act of 1933, as amended, or any state
securities law. Neither these shares, nor any portion thereof or
interest therein, may be sold, transferred or otherwise disposed of
unless the same are registered with and qualified in accordance with
said Act and any applicable state securities law, or in the opinion of
counsel reasonably satisfactory to the Company such registration and
qualification are not required."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon completion
of a public distribution under a registration statement of the securities
represented thereby) shall also bear such legend unless in the opinion of
counsel reasonably satisfactory to the Company the securities represented
thereby need no longer be subject to the restrictions contained in the legend.
4. Additional Agreements of the Company. The Company agrees with the
holders of this Option and any Option Shares purchased pursuant hereto that;
(a) Character of Option Shares. All shares (including fractional
shares) which may be issued upon the exercise of the rights represented by this
Option, upon issuance, will be duly authorized, validly issued, fully paid and
nonassessable and free from all taxes, liens and charges with respect to the
issue thereof, and, without limiting the generality of the foregoing, the
Company will take from time to time all such action as may be requisite to
ensure that the par value per share (if any) of the Common Stock is at all times
equal to or less than the then effective Option Exercise Price per share of the
Option Shares issuable pursuant to this Option;
(b) Reservation of Shares. During the period within which the rights
represented by this Option may be exercised, the Company will have at all times
authorized, and reserved (free from preemptive rights) for the purpose of issue
or transfer upon exercise of the Option, a sufficient number of shares of its
Common Stock to provide for the exercise of the Option;
(c) No Violations. The Company will take all such action as may be
necessary to ensure that Option Shares may be so issued without violation of any
applicable law
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or regulation, or of any requirements of any securities exchange upon which the
Common Stock of the Company may be listed;
(d) Maintain Authorized Shares. The Company will not take any action
which would result in any adjustment of the Option Exercise Price or the number
of Option Shares purchasable upon exercise of the Option if the total number of
Option Shares purchasable after such action upon full exercise of the Option,
together with all shares of Common Stock then outstanding and all shares of
Common Stock then issuable upon exercise of all options and other warrants to
purchase Common Stock and upon conversion of all Convertible Securities then
outstanding, would exceed the total number of shares of Common Stock then
authorized by the Company's Certificate or Articles of Incorporation, as then
amended;
(e) Actions in Avoidance; Non-Dilution. The Company will not, by
amendment of its Certificate or Articles of Incorporation or through any
reorganization, transfer of assets, consolidation, merger, issue or sale of
securities or otherwise, avoid or take any action which would have the effect of
avoiding the observance or performance of any of the terms to be observed or
performed hereunder by the Company, but will at all times in good faith assist
in carrying out all of the provisions of this Option and in taking all of such
action as may be necessary or appropriate in order to protect the rights of the
holders of this Option and any Option Shares purchased pursuant hereto; and
(f) Financial Information. The Company will provide each Option holder
with copies of all annual and quarterly financial statements regularly provided
by the Company to banks or other financial institutions to which the Company may
from time to time be indebted for borrowed money, promptly after the same are
available, and in addition, promptly after requested, such other information
concerning the Company as any Option holder may reasonably require (i) in order
to comply with any law or governmental regulation, order of any court or order,
inquiry or investigation of any governmental agency or instrumentality, or (ii)
in order to exercise any right or privilege of such Option holder or to enforce
any obligation of the Company under the Option or any agreement or instrument
executed and delivered in connection therewith.
5. (a) Anti-Dilution Provisions. The Option Exercise Price shall be
subject to adjustment from time to time as hereinafter provided. Upon each
adjustment of the Option Exercise Price, Xxxxxx shall thereafter be entitled to
purchase, at the Option Exercise Price resulting from such adjustment, the
number of shares of Common Stock obtained by multiplying the Option Exercise
Price in effect immediately prior to such adjustment by the number of shares
purchasable pursuant hereto immediately prior to such adjustment and dividing
the product thereof by the Option Exercise Price resulting from such adjustment.
(b) Adjustment of Option Exercise Price Upon Issue of Common Stock. If
and whenever after the date hereof the Company shall issue or sell any Common
Stock for a consideration per share less than the Market Price of the Common
Stock immediately prior to the time of such issue or sale, then, forthwith upon
such issue or sale, the Option Exercise Price
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shall be reduced (but not increased, except as otherwise specifically provided
in Section 5(b)(C)), to the lower of the prices (calculated to the nearest
one-ten thousandth of a cent) determined as follows:
(1) by dividing (i) an amount equal to the sum of (A) the aggregate
number of shares of Common Stock outstanding immediately prior to such
issue or sale multiplied by the then existing Option Exercise Price, and
(B) the consideration, if any, received by the Company upon such issue or
sale, by (ii) the aggregate number of shares of Common Stock outstanding
immediately after such issue or sale; and
(2) by multiplying the Option Exercise Price in effect immediately
prior to the time of such issue or sale by a fraction, the numerator of
which shall be the sum of (i) the aggregate number of shares of Common
Stock outstanding immediately prior to such issue or sale multiplied by the
Market Price of the Common Stock immediately prior to such issue or sale
plus (ii) the consideration received by the Company upon such issue or
sale, and the denominator of which shall be the product of (y) the
aggregate number of shares of Common Stock outstanding immediately after
such issue or sale, multiplied by (z) the Market Price of the Common Stock
immediately prior to such issue or sale.
For purposes of this Section 5(b), the following Sections 5(b)(A) to
5(b)(H) inclusive, shall be applicable:
(A) Issuance of Rights or Options. In case at any time on or
after the date hereof the Company shall in any manner grant (whether directly or
by assumption in a merger or otherwise) any rights to subscribe for or to
purchase, or any warrants or options for the purchase of Common Stock or any
stock or securities convertible into or exchangeable for Common Stock (such
convertible or exchangeable stock or securities being herein called "Convertible
Securities"), whether or not such rights or options or warrants or the right to
convert or exchange any such Convertible Securities are immediately exercisable,
and the price per share for which shares of Common Stock are issuable upon the
exercise of such rights or options or warrants or upon conversion or exchange of
such Convertible Securities (determined by dividing (i) the total amount, if
any, received or receivable by the Company as consideration for the granting of
such rights or options or warrants, plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the exercise of
such rights or options or warrants, or plus, in the case of such rights or
options or warrants which relate to Convertible Securities, the minimum
aggregate amount of additional consideration, if any, payable upon the issue or
sale of such Convertible Securities and upon the conversion or exchange thereof,
by (ii) the total maximum number of shares of Common Stock issuable upon the
exercise of such rights or options or warrants or upon the conversion or
exchange of all such Convertible Securities issuable upon the exercise of such
rights or options or warrants) shall be less than the Market Price of the Common
Stock determined as of the date of the granting of such rights or options, as
the case may be, then the total maximum number of shares of Common Stock
issuable upon the exercise of such rights or options or warrants or upon
conversion or exchange of all such Convertible Securities issuable upon the
exercise of such
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rights or options or warrants shall be deemed to be outstanding as of the date
of the granting of such rights or options or warrants and to have been issued
for such price per share, with the effect on the Option Exercise Price specified
in Section. Except as provided in Section 5(b)(C), no further adjustment of the
Option Exercise Price shall be made upon the actual issue of such Common Stock
or of such Convertible Securities upon exercise of such rights or options or
warrants or upon the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities.
(B) Issuance of Convertible Securities. In any case at any time
on or after the date hereof the Company shall in any manner issue (whether
directly or by assumption in a merger or otherwise) or sell any Convertible
Securities, whether or not the right to exchange or convert thereunder is
immediately exercisable, and the price per share for which shares of Common
Stock are issuable upon such conversion or exchange (determined by dividing (i)
the total amount, if any, received or receivable by the Company as consideration
for the issue or sale of such Convertible Securities, plus the minimum aggregate
amount of additional consideration, if any, payable to the Company upon the
conversion or exchange thereof, by (ii) the total maximum number of shares of
Common Stock issuable upon the conversion or exchange of all such Convertible
Securities) shall be less than the Market Price of the Common Stock determined
as of the date of such issue or sale of Convertible Securities, as the case may
be, then the total maximum number of shares of Common Stock issuable upon
conversion or exchange of all such Convertible Securities shall be deemed to be
outstanding as of the date of the issuance of such Convertible Securities and to
have been issued for such price per share, with he effect on the Option Exercise
Price specified in Section 5(b); provided, however, that (y) except as otherwise
provided in Section 5(b)(C), no further adjustment of the Option Exercise Price
shall be made upon the actual issue of such Common Stock upon conversion or
exchange of such Convertible Securities, and (z) if any such issue or sale of
such Convertible Securities is made upon exercise of any rights to subscribe for
or to purchase or any option or warrant to purchase any such Convertible
Securities for which adjustments of the Option Exercise Price have been or are
to be made pursuant to the provisions of Section 5(b)(A), no further adjustment
of the Option Exercise Price shall be made by reason of such issue or sale.
(C) Change in Option Price or Conversion Rate. Upon the happening
of any of the following events, namely, if the purchase price provided for in
any right or option or warrant referred to in Section 5(b)(A), the additional
consideration, if any, payable upon the conversion or exchange of any
Convertible Securities referred to in Sections 5(b)(A) or 5(b)(B), or the rate
at which any Convertible Securities referred to in Sections 5(b)(A) or 5(b)(B)
are convertible into or exchangeable for Common Stock shall change, the Option
Exercise Price then in effect hereunder shall forthwith be readjusted (increased
or decreased, as the case may be) to the Option Exercise Price which would have
been in effect at such time had such rights, options, warrants or Convertible
Securities still outstanding provided for such changed purchase price,
additional consideration or conversion rate, as the case may be, at the time
initially granted, issued or sold. On the expiration of any such option or right
or warrant referred to in Section 5(b)(A), or the termination of any such right
to convert or exchange any such Convertible Securities referred to in Sections
5(b)(A) or 5(b)(B), the Option Exercise Price then
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in effect hereunder shall forthwith be readjusted (increased or decreased, as
the case may be) to the Option Exercise Price which would have been in effect at
the time of such expiration or termination had such right, option, warrant or
Convertible Securities, to the extent outstanding immediately prior to such
expiration or termination never been granted, issued or sold, and the Common
Stock issuable thereunder shall no longer be deemed to be outstanding. If the
purchase price provided for in any such right, option or warrant referred to in
Section 5(b)(A) or the rate at which any Convertible Securities referred to in
Sections 5(b)(A) or 5(b)(B) are convertible into or exchangeable for Common
Stock shall be reduced at any time under or by reason of provisions with respect
thereto designed to protect against dilution, then in case of the delivery of
Common Stock upon the exercise of any such right or option or warrant or upon
conversion or exchange of any such Convertible Securities, the Option Exercise
Price then in effect hereunder shall, if not already adjusted, forthwith be
adjusted to such amount as would have obtained had such right, option, warrant
or Convertible Securities never been issued as to such Common Stock and had
adjustments been made upon the issuance of the Common Stock delivered as
aforesaid, but only if as a result of such adjustment the Option Exercise Price
then in effect hereunder is thereby reduced. With respect to any and all
Convertible Securities outstanding on the date hereof, if the additional
consideration, if any, payable upon the conversion or exchange of any such
Convertible Securities or the rate at which any such Convertible Securities are
convertible into or exchangeable for Common Stock in effect on the date hereof
(the "Original Conversion Rate") shall change to an amount less than the Option
Exercise Price then in effect hereunder (the "Adjusted Conversion Rate"), the
Option Exercise Price then in effect hereunder shall forthwith be adjusted as
follows: (i) the amount of the difference between the Option Exercise Price then
in effect hereunder (after adjustment to the extent applicable for any event
causing the change in the Original Conversion Rate) and the Adjusted Conversion
Rate shall be multiplied by the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible Securities,
(ii) the resulting product shall be divided by the Adjusted Conversion Rate, and
(iii) the resulting quotient shall be assumed to be a number of shares of Common
Stock issued without consideration by the Company and the Option Exercise Price
(after adjustment to the extent applicable for any event causing the change in
the Original Conversion Rate) shall be adjusted for such assumed issuance as
provided in Section 5(b).
(D) Stock Dividends. In case at any time the Company shall
declare a dividend or make any other distribution upon any class or series of
stock of the Company payable in Common Stock or Convertible Securities, any
Common Stock or Convertible Securities, as the case may be, issuable in payment
of such dividend or distribution shall be deemed to have been issued or sold
without consideration with the effect on the Option Exercise Price specified in
Section 5(b).
(E) Consideration for Stock. In case at any time Common Stock or
Convertible Securities or any rights or options or warrants to purchase any
Common Stock or Convertible Securities shall be issued or sold for cash, the
consideration therefor shall be deemed to be the amount received by the Company
thereof. In case at any time any Common Stock, Convertible Securities or any
rights or options or warrants to purchase any such Common Stock
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or Convertible Securities shall be issued or sold for consideration other than
cash, the amount of the consideration other than cash received by the Company
shall be deemed to be the fair value of such consideration, as determined
reasonably and in good faith by the Board of Directors of the Company. In case
at any time any Common Stock or Convertible Securities or any rights or options
or warrants to purchase any Common Stock or Convertible Securities shall be
issued in connection with any merger, consolidation or share exchange in which
the Company is the surviving corporation, the amount of consideration received
therefor shall be deemed to be the fair value, as determined reasonably and in
good faith by the Board of Directors of the Company, of such portion of the
assets and business of the nonsurviving corporation as such Board of Directors
may determine to be attributable to such Common Stock, Convertible Securities,
rights or options or warrants, as the case may be. In case at any time any
rights or options or warrants to purchase any shares of Common Stock or
Convertible Securities shall be issued in connection with the issue and sale of
other securities of the company, together comprising one integral transaction in
which no consideration is allocated to such rights or options or warrants by the
parties thereto, such rights or options or warrants shall be deemed to have been
issued without consideration.
(F) Record Date. In the case the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them (i) to receive
a dividend or other distribution payable in Common Stock or Convertible
Securities, or (ii) to subscribe for or purchase Common Stock or Convertible
Securities, then such record date shall be deemed to be the date of the issue or
sale of the Common Stock or Convertible Securities deemed to have been issued or
sold as a result of the declaration of such dividend or the making of such other
distribution or the date of the granting of such right of subscription or
purchase, as the case may be.
(G) Treasury Shares. The number of shares of Common Stock
outstanding at any given time shall not include shares owned directly by the
Company in treasury, and the disposition of any such shares shall be considered
an issue or sale of Common Stock for the purposes of Section 5(b).
(H) Definition of Market Price. The term "Market Price" shall
mean, for any day, the highest of the prices determined as follows:
(x) the last sale price per share for the Common Stock on the
principal securities exchange on which the Common Stock is listed or
admitted to trading, or, if not so listed or admitted to trading on
any securities exchange, the last sale price per share for the Common
Stock on the National Association of Securities Dealers National
Market System, or, if the Common Stock shall not be listed on such
system, the closing bid price per share in the over-the-counter
market, in each such case, unless otherwise provided herein, averaged
over a period of 20 consecutive business days prior to the date as of
which the determination is to be made; and
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(y) the book value per share of the Common Stock, as determined
in accordance with generally accepted accounting principles consistent
with those then being applied, by independent certified public
accountants of recognized national standing as of the last day of the
month ending within 31 days preceding the date as of which the
determination is to be made.
(c) Payments to Holders in Connection With Dividends. In the event
that the Company declares a dividend upon the Common Stock or any Convertible
Securities (other than a dividend payable in shares of Common Stock or a cash
dividend paid out of retained earnings), then the Option Exercise Price in
effect immediately prior to the declaration of such dividend shall be reduced by
an amount equal to the amount of such dividend payable per share of Common Stock
or Common Stock Equivalent (as hereinafter defined), in the case of a cash
dividend, or by the fair value of such dividend per share of Common Stock or
Common Stock Equivalent (as reasonably determined by the Board of Directors of
the Company) in the case of any other dividend, such reduction to be effective
on the date as of which a record is taken for purposes of such dividend, or if a
record is not taken, the date as of which holders of record of Common Stock or
any Convertible Securities entitled to such dividend are determined. For the
purposes of this Section 5(c), "dividend" shall mean any distribution to the
holders of Common Stock or any Convertible Securities as such. As used herein,
the term "Common Stock Equivalent" shall mean with respect to a dividend upon
any Convertible Securities the amount or fair value of such dividend per share
of Convertible Securities divided by the number of shares of Common Stock into
which each share of such Convertible Securities is then convertible into or
exchangeable for, whether or not such right of conversion or exchange is then
exercisable. In the event that the Company declares a dividend (other than a
dividend payable in shares of Common Stock or a cash dividend paid out of
retained earnings) on less than all of the Common Stock and Convertible
Securities then outstanding, the amount by which the Option Exercise Price shall
be reduced pursuant to this Section 5(c) shall be determined by dividing (i) the
total amount of such dividend payable in the aggregate on all shares of Common
Stock and/or Convertible Securities on which such dividend is declared, in the
case of a cash dividend, or the total fair value of such dividend payable in the
aggregate on all shares of Common Stock and/or Convertible Securities on which
such dividend is declared, in the case of any other dividend, by (ii) the total
number of shares of Common Stock outstanding on the record date for such
dividend plus the total number of shares of Common Stock which all Convertible
Securities outstanding on such record date are then convertible into or
exchangeable for, whether or not such right of conversion or exchange is then
exercisable.
(d) Stock Splits. Stock Dividends and Reverse Splits. In the event
that the Company shall at any time subdivide its outstanding shares of Common
Stock into a greater number of shares, or shall declare a dividend upon the
Common Stock or any other class or series of stock payable in Common Stock, the
Option Exercise Price in effect immediately prior to such subdivision or
dividend shall be proportionately reduced, and conversely, in the event that the
outstanding shares of Common Stock shall at any time be combined into a smaller
number of shares, the Option Exercise Price in effect immediately prior to such
combination shall be proportionately increased. Upon each adjustment of the
Option Exercise Price as
9
provided in this Section 5(d), Xxxxxx shall thereafter be entitled to purchase,
at the Option Exercise Price resulting from such adjustment, the number of
shares of Common Stock obtained by multiplying the Option Exercise Price in
effect immediately prior to such adjustment by the number of shares purchasable
pursuant hereto immediately prior to such adjustment and dividing the product
thereof by the Option Exercise Price resulting from such adjustment.
(e) Reorganization and Asset Sales. If any capital reorganization or
reclassification of the capital stock of the Company, or any consolidation,
merger or share exchange of the Company with another corporation, or the sale,
transfer or other disposition of all or substantially all of its assets to
another person shall be effected in such a way that holders of Common Stock
shall be entitled to receive stock, securities or assets with respect to or in
exchange for their shares, then the following provisions shall apply:
(i) As a condition of such reorganization, reclassification,
consolidation, merger, share exchange, sale, transfer or other
disposition (except as otherwise provided below in this Section 5(e)),
lawful and adequate provisions shall be made whereby Xxxxxx shall
thereafter have the right to purchase and receive upon the terms and
conditions specified in this Agreement and in lieu of the Option
Shares immediately theretofore receivable upon the exercise of the
rights represented hereby, such shares of stock, securities or assets
as may be issued or payable with respect to or in exchange for a
number of outstanding shares of such Common Stock equal to the number
of Option Shares immediately theretofore so receivable had such
reorganization, reclassification, consolidation, merger, share
exchange, sale, transfer or other disposition not taken place, and in
any such case appropriate provision reasonably satisfactory to Xxxxxx
shall be made with respect to the rights and interests of Xxxxxx to
the end that the provisions hereof (including, without limitation,
provisions for adjustments of the Option Exercise Price and of the
number of Option Shares receivable upon the exercise) shall thereafter
be applicable, as nearly as may be, in relation to any shares of
stock, securities or assets thereafter deliverable upon the exercise
of the Option.
(ii) In the event of a merger, share exchange or consolidation of
the Company with or into another corporation as a result of which a
number of shares of common stock of the surviving corporation greater
than the total number of shares of Common Stock of the Company
outstanding immediately prior to such merger, share exchange or
consolidation are issuable to holders of Common Stock of the company,
then the number of Option Shares purchasable hereunder and the amount
of the Option Exercise Price in effect immediately prior to such
merger, share exchange or consolidation shall be adjusted in the same
manner as though there were a subdivision of the outstanding shares of
Common Stock of the Company.
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(iii) The Company shall not effect any such consolidation,
merger, share exchange, sale, transfer or other disposition unless
prior to or simultaneously with the consummation thereof the successor
or acquiring corporation (if other than the Company) resulting from
such consolidation, share exchange or merger or the person purchasing
or otherwise acquiring such assets shall have assumed by written
instrument reasonably satisfactory to Xxxxxx, and executed and mailed
or delivered to Xxxxxx care of Nottingham Investment Company, 000 Xxxx
Xxxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx, 00000, the obligation to
deliver to Xxxxxx such shares of stock, securities or assets as, in
accordance with the foregoing provisions, Xxxxxx may be entitled to
receive, and all other liabilities and obligations of the Company
hereunder. Upon written request by Xxxxxx such successor or acquiring
corporation will issue a new option agreement revised to reflect the
modifications in this Agreement effected pursuant to this Section
5(e).
(iv) If a purchase, tender or exchange offer is made to and
accepted by the holders of more than 50% of the outstanding shares of
Common Stock of the Company, the Company shall not effect any
consolidation, merger, share exchange or sale, transfer or other
disposition of all or substantially all of the Company's assets with
the person having made such offer or with any affiliate of such
person, unless prior to the consummation of such consolidation,
merger, share exchange, sale, transfer or other disposition Xxxxxx
shall have been given a reasonable opportunity to then elect to
receive upon the exercise of the Option either the stock, securities
or assets then issuable with respect to the Common Stock of the
Company or the stock, securities or assets, or the equivalent, issued
to previous holders of Common Stock in accordance with such offer.
(f) Notice of Adjustment. Whenever the Option Exercise Price or the
number of Option Shares issuable upon the exercise of the Option shall be
adjusted as herein provided, or the rights of Xxxxxx shall change by reason of
other events specified herein, the Company shall compute the adjusted Option
Exercise Price and the adjusted number of Option Shares in accordance with the
provisions hereof and shall prepare a certificate signed by its chief executive
officer or principal financial officer setting forth the adjusted Option
Exercise Price and the adjusted number of Option Shares issuable upon the
exercise of the Option or specifying the other shares of stock, securities or
assets receivable as a result of such change in rights, and showing in
reasonable detail the facts and calculations upon which such adjustments or
other changes are based, and shall obtain an opinion of the Company's
independent certified public accountants reasonably satisfactory to Xxxxxx as to
the correctness of such adjustments and calculations and to the effect that such
adjustments and calculations have been made in accordance with the terms hereof.
The Company shall cause to be mailed to Xxxxxx copies of such officer's
certificate and accountants' opinion together with a notice stating that the
Option Exercise Price and the number of Option Shares purchasable upon exercise
of the Option have been adjusted and setting forth the adjusted Option Exercise
Price and the adjusted number of Option Shares purchasable upon the exercise of
the Option. Notwithstanding the foregoing, a
11
transaction or series of related transactions which would otherwise require
adjustment of the Option Exercise Price by five percent (5%) or less shall not
be deemed an event requiring any such adjustment hereunder.
(g) Notifications to Xxxxxx. In case at any time the Company proposes:
(i) to declare any cash dividend upon its Common Stock;
(ii) to declare any dividend upon its Common Stock payable in
stock or make any other dividend or other distribution to the holders
of its Common Stock;
(iii) to issue or grant to all holders of its Common Stock
options, warrants or rights for the purchase of Common Stock or
Convertible Securities;
(iv) to offer for subscription pro rata to the holders of its
Common Stock any additional shares of stock of any class or other
rights;
(v) to effect any capital reorganization, or reclassification of
the capital stock of the Company, or consolidation, merger or share
exchange of the Company with another corporation, or sale, transfer or
other disposition of all or substantially all of its assets; or
(vi) to effect a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then, in any one or more of such cases, the Company shall give Xxxxxx (A) at
least 30 days (but not more than 90 days) prior written notice of the date on
which the books of the Company shall close or a record shall be taken for such
dividend, distribution or subscription rights or for determining rights to vote
in respect of any such issuance, reorganization, reclassification,
consolidation, merger, share exchange, sale, transfer, disposition, dissolution,
liquidation or winding up, and (B) in the case of any such issuance,
reorganization, reclassification, consolidation, merger, share exchange, sale,
transfer, disposition, dissolution, liquidation or winding up, at least 30 days
(but not more than 90 days) prior written notice of the date when the same shall
take place. Such notice in accordance with the foregoing clause (A) shall also
specify, in the case of any such dividend, distribution, issuance, grant or
subscription rights, the date on which the holders of Common Stock shall be
entitled thereto, and such notice in accordance with the foregoing clause (B)
shall also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
share exchange, sale, transfer, disposition, dissolution, liquidation or
winding-up, as the case may be.
12
(h) Company to Prevent Dilution. If any event or condition occurs as
to which other provisions of this Section 5 are not strictly applicable or if
strictly applicable would not fairly protect the exercise or purchase rights of
the Option as set forth in this Agreement in accordance with the essential
intent and principles of such provisions, or which might materially and
adversely affect the exercise or purchase rights of Xxxxxx under any provisions
of this Agreement, then the Company shall make an adjustment in the application
of such provisions, in accordance with such essential intent and principles, so
as to protect such exercise and purchase rights as aforesaid, and any adjustment
necessary with respect to the Option Exercise Price and the number of Option
Shares purchasable hereunder so as to preserve the rights of Xxxxxx hereunder.
In no event shall any such adjustment have the effect of increasing the Option
Exercise Price as otherwise determined pursuant to this Section 5 except in the
event of a combination of shares of the type contemplated by Section 5(d), and
then in no event to an amount larger than the Option Exercise Price as adjusted
pursuant to Section 5(d).
7. Definitions. The terms defined in this Section, whenever used in this
Agreement, shall have the respective meanings hereinafter specified:
(a) "Common Stock" shall mean and include the Company's Common
Stock, $0.10 par value, and shall also include, in case of any
reorganization, reclassification, consolidation, merger, share
exchange or sale, transfer or other disposition of assets of the
character referred to in Section 5(e) hereof, the stock, securities or
assets provided for in such Section.
(b) "Option Exercise Price" shall mean the purchase price of
$2.00 per Option Share payable upon exercise of the Option, subject to
adjustment from time to time pursuant to the provisions hereof.
(c) "Option Shares" shall mean the shares of Common Stock
purchased or purchasable by Xxxxxx pursuant to this Agreement upon the
exercise of the Option.
(d) "outstanding" when used with reference to Common Stock shall
mean (except as otherwise expressly provided herein) at any date as of
which the number of shares thereof is to be determined, all issued
shares of Common Stock, except shares then owned or held by or for the
account of the Company.
(e) "person" shall mean and include an individual, corporation,
partnership, joint venture, association, trust, governmental authority
or political subdivision.
(f) "Securities Act" shall mean the Securities Act of 1933, as
amended or any similar Federal statute, and the rules and regulations
of the Commission,
13
or any other Federal agency then administering such Securities Act,
thereunder, all as the same shall be in effect at the time.
8. Registration Rights.
(a) Piggyback Registration Rights. In the case of any proposed
registration by the Company of shares of capital stock or other securities of
the Company under the Securities Act of 1933 on any form (other than form S-8)
that also would be eligible for use by Xxxxxx or its assignees in respect of the
Option Shares, the Company will give at least 30 days prior written notice of
the filing or proposed filing of a registration statement to Xxxxxx.
(i) Xxxxxx shall have the right to elect within 20 days after
receipt of such notice to include in such registration statement all or any
part of the Option Shares, which election shall be made by notice to the
Company within such 20-day period specifying the number of Option Shares
that Xxxxxx desires to so include; provided that, in the case of an
underwritten public offering, if the managing underwriter participating in
the sale and distribution of the Company's securities covered by such
registration statement advises the Company in good faith and in writing
that inclusion of some or all of the Option Shares which Xxxxxx has
requested be included in such registration statement would materially and
adversely affect the marketing of the entire offering of securities, then
Xxxxxx shall be entitled to include in the aggregate only such number of
Option Shares (the "Permissible Shares") as such managing underwriter shall
in good faith advise the Company in writing may be included without, in the
opinion of the managing underwriter, materially and adversely affecting the
marketing of the entire offering of securities. If the aggregate number of
Option Shares that Xxxxxx shall have requested be included in such
registration statement exceeds the number of Permissible Shares, then
Xxxxxx, at its option, shall be entitled to include the Permissible Shares
in the registration statement to be filed by the Company or may withdraw
its election to include all or a portion of the Option Shares in such
registration statement.
(ii) The Company shall be obligated to afford Xxxxxx of the right
to participate in each and every such registration taking place in
accordance with the provisions of this Section 8 until (i) three (3) years
from the date on which Xxxxxx last acquired any Option Shares or (ii)
Xxxxxx no longer shall own, directly or indirectly, any Option Shares.
Notwithstanding anything contained herein to the contrary, the Company
agrees that it will not permit or agree to be included in any registration
statement any shares of capital stock or other securities of the Company
held by any person other than the Company until all outstanding Option
Shares have been included in registration statements and sold, unless, in
the case of each such registration, Xxxxxx first shall have been offered,
and declined, the opportunity to include all of the Option Shares in a
14
registration statement filed with and declared effective by the Securities
and Exchange Commission (the "Commission") under the Securities Act of
1933.
(b) Demand Registration Rights. The Company covenants and agrees that,
commencing on the date hereof and for a period ending three years from the date
that Xxxxxx or an assignee exercises an Option hereunder, upon receipt of a
written request therefor from Xxxxxx or any assignee of Xxxxxx, the Company
shall, with reasonable promptness, file a registration statement to register
under the Securities Act of 1933 for sale to the public all or a portion of the
Option Shares, and thereafter shall file such amendment or amendments as shall
be necessary to cause the registration statement to be declared effective.
Xxxxxx'x rights under this Section 8(b) shall be exercised not more than two (2)
times during the term of this Agreement unless the Company shall otherwise
agree. Xxxxxx'x rights under this Section 8(b) shall be exercised for not less
than 50,000 Option Shares unless the Company shall otherwise agree.
9. Company's Registration Obligations. If and whenever the Company is
obligated by the provisions of this Agreement to effect the registration of any
Option Shares under the Securities Act of 1933, the Company will, as promptly as
reasonably practicable:
(a) Prepare and file with the Commission a registration statement with
respect to such Option Shares and cause such registration statement to
become and remain effective for a period of at least 180 days.
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective until the earlier of the sale of all Option Shares
covered thereby and the expiration of a period of 180 days after the date
such registration statement became effective, and comply with the
provisions of the Securities Act of 1933 with respect to the disposition of
all rights to purchase securities covered by such registration statement;
provided, however, that if maintaining the effectiveness of the
registration statement would require the filing of a post-effective
amendment including new financial statements (other than financial
statements that the Company would be required to include in a Quarterly
Report on Form 10-Q under Section 13 or 15(d) of the Securities Exchange
Act of 1934 (the "Exchange Act")) the Company may suspend the effectiveness
of such registration statement, provided that the Company causes such
registration statement to remain effective for a cumulative period of 180
days following the date on which such registration statement becomes
effective.
(c) Furnish to Xxxxxx or its assignees for whom the same are
registered or are to be registered such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of
the
15
Securities Act of 1933, and such other documents, as Xxxxxx or its
assignees may reasonably request in order to facilitate the disposition of
the Option Shares.
(d) Register or qualify the Option Shares covered by such registration
statement under the securities or blue sky laws of such jurisdictions as
Xxxxxx or its assignees shall reasonably request, and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such holders to consummate the disposition of the Option Shares in such
jurisdictions; provided; however, that the Company shall not be obligated,
by reason thereof, to: (i) Register or qualify the Option Shares under the
securities or Blue Sky laws of more than ten (10) states of the United
States; (ii) Qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 9(b); (iii)
Subject itself to taxation in any jurisdiction where it would not otherwise
be required to subject itself to taxation but for this Section 9(d); or
(iv) Consent to general service of process in any jurisdiction where it
would not otherwise be required to consent to general service of process
but for this Section 9(d).
(e) Furnish to Xxxxxx or its assignees at the time of disposition an
opinion of counsel for the Company acceptable to Xxxxxx or its assignees,
to the effect that (i) a registration statement covering such securities
has been filed with the Commission under the Securities Act of 1933 and has
been made effective by order of the Commission, (ii) a prospectus complying
as to form with the requirements of the Securities Act of 1933 is available
for delivery, (iii) such registration statement and prospectus appear to be
responsive in all material respects as to matters of form to the
requirements of the Securities Act of 1933, and nothing has come to such
counsel's attention which would cause it to believe that either the
registration statement or the prospectus contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iv) no
stop order has been issued by the Commission suspending the effectiveness
of such registration statement and to the best of such counsel's knowledge,
no proceedings for the issuance of such a stop order are threatened or
contemplated by the Commission, and (v) the Option Shares have been
registered or qualified under the securities or blue sky laws of each
jurisdiction in which the Company has been advised by the representatives
of the underwriters that they intend to sell such securities, if a firm
offering, and each jurisdiction in which the Company shall be required to
register or qualify the Option Shares pursuant to Section 9(d), and
covering such other matters as such holders may reasonably request.
(f) Notify Xxxxxx or its assignees, as the case may be, promptly after
the Company shall receive notice that any registration statement,
supplement or amendment has become effective, any registration statement is
required to be amended or supplemented, or any stop order with respect
thereto has been issued.
16
(g) The inclusion of Option Shares in any such registration statement
involving an underwritten public offering shall be upon the condition that,
except as otherwise provided in this Agreement, Xxxxxx or its assignees
shall have their Option Shares sold through the underwriters on the same
terms and conditions as are applicable to the Company.
9. Expenses of Registration. The costs and expenses (other than
underwriting discounts or commissions) of all registrations and qualifications
under the Securities Act of 1933 and applicable state securities or blue sky
laws, and of all other actions, that the Company is required to take or effect
pursuant to this Agreement shall be paid by the Company (including, without
limitation, all registration and filing fees, printing expenses, costs of
special audits incidental to or required by any such registration, and fees and
disbursements of counsel and independent public accountants for the Company);
provided, however, that Xxxxxx or its assignees, as the case may be, shall pay
the fees and disbursements of their respective legal counsel.
10. Xxxxxx'x Registration Obligations. In the event Xxxxxx or an assignee
of Xxxxxx desires to include any Option Shares in any registration statement
pursuant to this Agreement, Xxxxxx or such assignee shall:
(a) cooperate with the Company in preparing such registration
statement, and execute such agreements as may be reasonably necessary in
favor of any underwriter selected by the Company; and
(b) promptly supply the Company with all information, documents,
representations and agreements as any managing underwriter may reasonably
deem necessary in connection with the registration of such Option Shares.
11. Indemnification. (a) In the event of any registration of any Option
Shares pursuant to this Agreement, the Company will:
(i) indemnify and hold harmless Xxxxxx and any assignee of Xxxxxx
whose Option Shares are being so registered or offered, and each person, if
any, who controls Xxxxxx or such assignee within the meaning of the
Securities Act of 1933, against any losses, claims, damages, expense
(including, without limitation, attorneys' fees and disbursements), or
liabilities (or actions in respect thereof) under the Securities Act of
1933 or otherwise, which arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
such registration statement, any preliminary prospectus or final
prospectus, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or any other violation of law with respect thereto,
and
17
(ii) reimburse Xxxxxx or such assignee and each such controlling
person for any legal or other expenses reasonably incurred in connection
with investigating or defending any such loss, claim, damage, liability or
action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any such registration statement, preliminary prospectus, final
prospectus or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished by Xxxxxx or such assignee, as the
case may be, expressly for inclusion therein.
(b) In the event of any registration of any Option Shares, Xxxxxx or
the assignee of Xxxxxx whose Option Shares are included in the registration
statement, as the case may be, shall:
(i) indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed any such registration
statement, and each person, if any, who controls the Company within the
meaning of the Securities Act of 1933, against any losses, claims, damages
or liabilities (or actions in respect thereof) to which the Company or any
such director, officer or controlling person may become subject, under the
Securities Act of 1933 or otherwise, insofar as such losses, claims,
damages, expense (including, without limitation, attorney's fees and
disbursements), or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue or alleged untrue statement of any material
fact contained in any such registration statement, preliminary prospectus,
final prospectus, or amendment or supplement thereto, or arise out of or
are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in such registration statement,
preliminary prospectus, final prospectus, or amendment or supplement
thereto, in reliance upon and in conformity with written information
furnished by Xxxxxx or such assignee and accompanied by an express written
consent that such information may be included therein, and
(ii) reimburse any legal or other expenses reasonably incurred in
connection with investigating or defending any such loss, claim, damage,
liability or action, but only in the circumstances and to the extent
aforesaid;
provided, however, that in no event shall the aggregate liability of Xxxxxx and
its assignees to all indemnified parties hereunder be greater in amount than the
dollar amount of proceeds received by Xxxxxx and its assignees upon the sale of
Option Shares giving rise to such indemnification obligations.
18
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under Section 11(a) or Section 11(b) hereof
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable 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 Company on the one hand and Xxxxxx and its assignees on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company on the one hand and
of Xxxxxx and its assignees on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand, or by Xxxxxx and its
assignees on the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
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 11(e), any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.
The Company and Xxxxxx (on behalf of itself and any assignee of
Xxxxxx) agree that it would not be just and equitable if contribution pursuant
to this Section 11(c) were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. Notwithstanding the
provisions of this Section 11(c), Xxxxxx and its assignees hereunder shall not
be required to contribute in the aggregate any amount in excess of the amount by
which the total price at the Option Shares sold by Xxxxxx and its assignees and
distributed to the public exceeds the amount of any damages that Xxxxxx and its
assignees otherwise have been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
(d) Promptly after receipt by an indemnified party under this Section
11 of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against an indemnifying party under
this Section 11, notify the indemnifying party of the commencement thereof, but
the omission so to notify the indemnifying party will not relieve it from any
liability which it may have under this Section 11 or otherwise.
(e) In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate in, and, to the extent that
it may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party. In the event the indemnifying party gives notice to the
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable
19
to such indemnified party under this Section 11 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof subsequent to the date of such notice other than reasonable costs of
investigation.
12. Agreements as to Underwriters. If the offering pursuant to any
registration statement provided for under this Agreement is made through
underwriters, the Company agrees to enter into an underwriting agreement in
customary form with such underwriters and to indemnify such underwriters, and
each person who controls such underwriters within the meaning of the Securities
Act of 1933, to the same extent as provided in Section 11(a) with respect to
the indemnification of Xxxxxx or its assignees.
13. Rule 144 Covenants. So long as this Option and any Option Shares remain
outstanding, the Company will file all reports required to be filed by it under
the Securities Act of 1933 or the Exchange Act and the rules and regulations
promulgated by the Commission thereunder (or, if it is not required to file such
reports, it will make publicly available such information as will enable holders
of Option Shares to sell any restricted shares of capital stock held by it
without registration as described below in this Section 13, and will take such
further action as each such holder may reasonably request, all to the extent
required from time to time to enable such holder to sell restricted securities
held by it without registration within the limitations of the exemptions
provided by (i) Rule 144 promulgated under the Securities Act of 1933, as such
rule may be amended from to time, or (ii) any similar rule or regulation
hereafter promulgated by the Commission.
14. Indemnity for Breaches. The Company agrees to indemnify and hold
harmless Xxxxxx and any assignee of Xxxxxx hereunder at all times from and after
the date of this Agreement, against and in respect of the following: (i) any
losses, liabilities, costs, expenses or damages to Xxxxxx or any such assignee
resulting from any breach of representation or warranty or nonfulfillment of any
agreement or covenant on the part of the Company under this Agreement, and (ii)
all suits, actions, proceedings, demands, assessments, judgments, costs,
attorneys' fees and expenses incident to any of the foregoing.
15. Transfer Books; No Rights as Stockholder; Survival of Rights. Subject
to compliance with Section 3, this Option is transferable in whole or in part
upon the books of the Company by the registered holder hereto in person or by
duly authorized attorney, and a new Option agreement shall be made and delivered
by the Company, of the same tenor and date as this Option but registered in the
name of the transferee, upon surrender of this Option, duly endorsed, to the
office or agency of the Company. All expenses, taxes (other than stock transfer
taxes) and other charges payable in connection with the preparation, execution
and delivery of Option agreements pursuant to this Section 15 shall be paid by
the Company. The Company will at no time close its transfer books against the
transfer of this Option or any Option Shares in any manner which interferes with
the timely exercise of this Option. This Option shall not entitle the holder
hereof to any voting rights or any rights as a stockholder of the Company. This
Option shall be binding upon, and inure to the benefit of, the heirs, personal
representatives, successors and assigns of the Company, the holders of this
Option and the holders of any and
20
all Option Shares purchased pursuant to the exercise of the Option. The
provisions of this Option and the agreements, representations, warranties,
rights and obligations of the Company, of the holder of this Option and of any
holder of Option Shares purchased upon exercise of the Option represented hereby
shall survive the exercise, surrender and cancellation of this Option and shall
remain in full force and effect after such exercise, surrender and cancellation
and after the Final Exercise Date until the exercise of all rights provided for
herein by the holders of the Option represented hereby and/or by the holders of
the Option Shares purchased pursuant to the exercise of such Option, or the
expiration of such rights in accordance with the terms hereof, and the full
performance by the Company of all of its obligations hereunder.
16. Equitable Relief. The parties agree that legal remedies may be
inadequate to enforce the provisions of this Agreement and that equitable
relief, including specific performance and injunctive relief, may be used to
enforce the provisions of this Agreement.
17. Notices. All notices and other communications give to or made upon any
party hereto in connection with this Agreement shall, except as otherwise
expressly herein provided, be in writing and shall be sent by registered or
certified mail or delivered by hand, addressed as follows:
if to the Company, to:
Essex Corporation
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxx, Xx., Chairman and CEO
If to Xxxxxx, to:
Nottingham Investment Company
000 Xxxx Xxxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: P. Xxxxxxx Xxxxxxxxxx, President and CEO
or to such other address as any part shall specify in writing to the other
party. All such notices and other communications shall be deemed given at the
time received.
18. Amendments. No change, modification or waiver of any terms or
provisions of this Agreement shall be valid unless the same shall be in writing
and signed by the parties hereto.
19. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland without regard to the conflict
of law principles thereof.
21
20. Benefit and Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and, in the case of Xxxxxx, its permitted assigns. The Company and Xxxxxx
expressly agree that Xxxxxx shall be entitled to assign from time to time all or
any part of its rights hereunder to any person or entity and all references in
this Agreement to Xxxxxx shall be deemed to be to an assignee in case any
assignment occurs hereunder. In the event that any party of this Agreement shall
be held to be invalid or unenforceable, the remaining parts hereof shall
nevertheless continue to be valid and enforceable as though the invalid or
unenforceable portion were not a part hereof.
21. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
22. Rules of Construction. Whenever used herein, the singular number shall
include the plural, or plural the singular and the use of the masculine,
feminine or neuter gender shall include all genders. The terms "agree" and
"agreements" contained herein are intended to include and mean "covenant" and
"covenants." Whenever used herein, the word "or" is used in the inclusive rather
than the exclusive sense. The headings in this Agreement are for convenience
only and shall not limit or otherwise affect any of the provisions hereof.
[signature page follows]
22
WITNESS WHEREOF, the parties hereto have executed this Agreement and
affixed their corporate seals hereto as of the day and year first above written.
WITNESS:
ESSEX CORPORATION
a Virginia corporation
/s/ Illegible By: /s/ Xxxxx Xxxxx, Xx. (SEAL)
----------------------------- --------------------------------
Xxxxx Xxxxx, Xx.
Chairman and CEO
WITNESS:
XXXXXX ASSOCIATES LIMITED PARTNERSHIP,
a Maryland limited partnership, by its
General Partner,
NOTTINGHAM INVESTMENT COMPANY,
a Maryland corporation
/s/ Illegible By: /s/ Xxxxxxx X. Xxxxx (SEAL)
----------------------------- --------------------------------
Xxxxxxx X. Xxxxx, Vice President
23
Assignment
To Be Executed in Order to Transfer the Option
The Option and the Shares described therein have not been registered under
the Securities Act of 1933, as amended, or under the securities act of any
state or other jurisdiction. No sale, offer to sell, or other transfer of
the Option or the Shares described therein may be made by the holder of the
Option or such Shares unless pursuant to an effective Registration
Statement, or unless, in the opinion of counsel to the Company, the
proposed disposition falls within a valid exemption from the registration
provisions of those acts.
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
------------------------------
(Name)
------------------------------
(Address)
------------------------------
the right to purchase shares of Common Stock, covered by the within Option
-----
Agreement, as said shares were constituted at the date of said Option, and does
hereby irrevocably constitute and appoint
-------------------------------------
Attorney to make such transfer on the books of the Company maintained for the
purpose, with full power of substitution.
-----------------------------------------
Signature
Dated, , 19 .
------------- --
In the presence of
-----------------------------
NOTICE
The signature to the foregoing Assignment must correspond to the name as written
upon the face of the within Option Agreement in every particular, without
alteration or enlargement or any change whatsoever.
24
Full Subscription Form
To Be Executed in Order to Exercise in Full the Option
The undersigned hereby exercises the right to purchase the shares of Common
Stock covered by the Option Agreement, dated as of July , 1994, by and between
--
Essex Corporation and Xxxxxx Associates Limited Partnership, at the date of this
subscription and herewith makes payment of the sum of $ representing the
--------
Option Exercise Price of $ per share in effect at this date.
--------
Certificates for such shares shall be issued in the name of and delivered to the
undersigned, unless otherwise specified by written instructions, signed by the
undersigned and accompanying this subscription.
Dated, , 19 .
------------- --
Signature
--------------------------------
Address
----------------------------------
------------------------------------------
NOTICE
The Option and the Shares described therein have not been registered under
the Securities Act of 1933, as amended, or under the securities act of any
state or other jurisdiction. No sale, offer to sell, or other transfer of
the Option or the Shares described therein may be made by the holder of the
Option or such Shares unless pursuant to an effective Registration
Statement, or unless, in the opinion of counsel to the Company, the
proposed disposition falls within a valid exemption from the registration
provisions of those acts.
25
Partial Subscription Form
To Be Executed in Order to Exercise Option in Part Only
The undersigned hereby exercises the right to purchase shares
-------------
of the total of shares of Common Stock covered by the Option
-------------
Agreement at the date of this subscription and herewith makes payment of the sum
of $ representing the Option Exercise Price of $ per
------------- -------------
share in effect at this date. Certificates for such shares and a new Option of
like tenor and date for the balance of the shares not subscribed for shall be
issued in the name of and delivered to the undersigned, unless otherwise
specified by written instruments, signed by the undersigned and accompanying
this subscription.
The following paragraph need be completed only if the Option Exercise Price and
number of shares of Common Stock specified in the within Option have been
adjusted pursuant to Section 5 of the Option.
The shares hereby subscribed for constitute shares of Common
-------------
Stock resulting from adjustment of shares of the total of
-------------
shares of Common Stock covered by the within Option, as said
-------------
shares were constituted at the date of the Option, leaving a balance of
shares of Common Stock, as constituted at the date of the Option,
-------------
to be covered by the new Option.
Dated, , 19 .
------------- --
Signature
--------------------------------
Address
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------------------------------------------
NOTICE
The Option and the Shares described therein have not been registered under
the Securities Act of 1933, as amended, or under the securities act of any
state or other jurisdiction. No sale, offer to sell, or other transfer of
the Option or the Shares described therein may be made by the holder of the
Option or such Shares unless pursuant to an effective Registration
Statement, or unless, in the opinion of counsel to the Company, the
proposed disposition falls within a valid exemption from the registration
provisions of those acts.
26
