EXHIBIT 10.22
LOGIMETRICS, INC.
Stock Option Agreement
Xx. Xxxxxxx X. Xxxxxxx
00 Xxx Xxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Dear Xx. Xxxxxxx:
We are pleased to notify you that by the determination of the Board of
Directors an option to purchase an aggregate of 250,000 shares of the Common
Stock of LogiMetrics, Inc. (herein called the "Company") at an exercise price of
$.50 per share has this 1st day of May, 1996 been granted to you. This option
may be exercised only upon the terms and conditions set forth below:
1. Purpose of Option.
The purpose of this option is to further the growth and development of
the Company by encouraging employees of the Company to obtain a proprietary
interest in the Company through the ownership of stock, thereby providing such
employees with an added incentive to continue in the employ and to promote the
success of the Company, and affording the Company a means of attracting to its
service employees of outstanding ability.
2. Acceptance of Option Agreement.
Your execution of this option agreement will indicate your acceptance
of and your willingness to be bound by its terms; it imposes no obligation upon
you to purchase any of the shares subject to the option. Your obligation to
purchase shares can arise only upon your exercise of the option in the manner
set forth in paragraph 4 hereof.
3. When Option May be Exercised.
The option granted you hereunder may be exercised in whole or in part
at any time and from time to time until the close of business on March 7, 2003.
4. Adjustment for Issue or Sale of Common Stock at Less Than Purchase
Price.
In case, at any time or from time to time after the date hereof
("Issuance Date"), the Company shall issue or sell shares of its Common Stock
(other than any Common Stock issuable upon (i) conversion of the Company's
Amended and Restated 12% Convertible Subordinated Debentures dated as of July
14, 1995 ("1995 Debentures"), (ii) exercise of those certain Amended and
Restated Series A Warrants dated March 7, 1996 to purchase 600,000 shares of
Common Stock ("Series A Warrants"), (iii) exercise by each of Xxxxxx X.
Xxxxxxxxxx
and Xxxxxx Deutsch (the "Principals") of their right to purchase 100,000 shares
of Common Stock at a price of $.10 per share ("Principals' Options"), (iv)
exercise of those certain Amended and Restated Series B Warrants dated March 7,
1996 to purchase 1,500,000 shares of Common Stock ("Series B Warrants"), (v)
conversion of the Company's 12% Convertible Senior Subordinated Debentures dated
March 7, 1996 ("Senior Subordinated Debentures"), (vi) exercise of those certain
Series C Warrants dated March 7, 1996 to purchase an aggregate of 2,542,380
shares of Common Stock ("Series C Warrants"), (vii) exercise of those certain
Series D Warrants dated March 7, 1996 to purchase an aggregate of 2,830,200
shares of Common Stock ("Series D Warrants"), (viii) exercise of those certain
Stock Options, dated March 7, 1996 to purchase 225,000 shares of Common Stock
issued to Xxxxxxx X. Xxxxx ("Xxxxx Options"), (ix) exercise of those certain
Series E Warrants dated March 7, 1996 to purchase an aggregate of 1,000,000
shares of Common Stock ("Series E Warrants") and (x) conversion of the Company's
30 shares of Series A 12% Cumulative Convertible Redeemable Preferred Stock
("Preferred Stock" and together with the 1995 Debentures, the Senior
Subordinated Debentures, the Series A, B, C, D and E Warrants (collectively, the
"Warrants"), the Xxxxx Options, the Principals' Options and any shares of Common
Stock issuable upon conversion or exercise thereof, the "Subject Securities")),
for a consideration per share less than thirty cents ($.30) per share (the
"Trigger Price") (or, if a Pro Forma Trigger Price shall be in effect as
provided below in this Paragraph 3, then less than such Pro Forma Trigger Price
per share), then and in each such case, upon the exercise hereof as provided in
Paragraph 1 hereof, you shall be entitled to receive, in lieu of the shares of
Common Stock theretofore receivable upon the exercise of this Option, a number
of shares of Common Stock determined by (a) dividing the Trigger Price by a Pro
Forma Trigger Price per share to be computed as provided below in this Paragraph
4, and (b) multiplying the resulting quotient by the number of shares of Common
Stock provided called for by this Option. A Pro Forma Trigger Price per share
shall be the price computed (to the nearest cent, a fraction of half cent or
more being considered a full cent):
by dividing (i) the sum of (x) the result obtained by
multiplying the number of shares of Common Stock of the
Company outstanding immediately prior to such issue or
sale by the Trigger Price (or, if a Pro Forma Trigger
Price shall be in effect, by such Price), and (y) the
consideration, if any, received by the Company upon
such issue or sale, by (ii) the number of shares of
Common Stock of the Company outstanding immediately
after such issue or sale.
For the purpose of this Paragraph 4:
4.1. Stock Splits, Dividends, etc., in Common Stock or Convertible
Securities. In case the Company splits its Common Stock or shall declare any
dividend, or make any other distribution, upon any stock of the Company of any
class payable in Common Stock, or in any stock or other securities directly or
indirectly convertible into or exchangeable for Common Stock (any such stock or
other securities being hereinafter called "Convertible Securities"), such split,
declaration or distribution shall be deemed to be an issue or sale (as of the
record date for such split, dividend or other distribution), without
consideration, of such Common Stock or such Convertible Securities, as the case
may be.
4.2. Issuance or Sale of Convertible Securities. In case the Company
shall issue or sell any Convertible Securities other than the Subject
Securities, there shall be determined the price per share for which Common Stock
is issuable upon the conversion or exchange thereof, such determination to be
made by dividing (a) the total amount 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 (b) the maximum number of
shares of Common Stock of the Company issuable upon the conversion or exchange
of all such Convertible Securities.
If the price per share so determined shall be less than the Trigger
Price (or, it a Pro Forma Trigger Price shall be in effect, less than such
Price) as of the date of such issue or sale, then such issue or sale shall be
deemed to be an issue or sale for cash (as of the date of issue or sale of such
Convertible Securities) of such maximum number of shares of Common Stock at the
price per share so determined, provided that, if such Convertible Securities
shall by their terms provide for an increase or increases, with the passage of
time, in the amount of additional consideration, if any, payable to the Company,
or in the rate of exchange, upon the conversion or exchange thereof, the Pro
Forma Trigger Price per share shall, forthwith upon any such increase becoming
effective, be readjusted to reflect the same, and provided, further, that upon
the expiration of such rights of conversion or exchange of such Convertible
Securities, if any thereof shall not have been exercised, the Pro Forma Trigger
Price per share shall forthwith be readjusted and thereafter be the price which
it would have been had an adjustment been made on the basis that the only shares
of Common Stock so issued or sold were those issued or sold upon the conversion
or exchange of such Convertible Securities, and that they were issued or sold
for the consideration actually received by the Company upon such conversion or
exchange, plus the consideration, if any, actually received by the Company for
the issue or sale of all such Convertible Securities which shall have been
converted or exchanged.
4.3. Grant of Rights or Options for Common Stock. In case the Company
shall grant any rights or options to subscribe for, purchase or otherwise
acquire Common Stock of any class other than the Subject Securities, there shall
be determined the price per share for which Common Stock is issuable upon the
exercise of such rights or options, such determination to be made by dividing
(a) the total amount, if any, received or receivable by the Company as
consideration for the granting of such rights or options, plus the minimum
aggregate amount of additional consideration, if any, payable to the Company
upon the exercise of such rights or options, by (b) the maximum number of shares
of Common Stock issuable upon the exercise of such rights or options.
If the price per share so determined shall be less than the Trigger
Price (or, if a Pro Forma Trigger Price shall be in effect, less than such
Price) as of the date of such issue or sale, then the granting of such rights or
options shall be deemed to be an issue or sale for cash (as of the date of the
granting of such rights or options) of such maximum number of shares of Common
Stock at the price per share so determined, provided that, if such rights or
options shall by their terms provide for an increase or increases, with the
passage of time, in the amount of
additional consideration, if any, payable to the Company upon the exercise
thereof, the Pro Forma Trigger Price per share shall, forthwith upon any such
increase becoming effective, be readjusted to reflect the same, and provided,
further, that upon the expiration of such rights or options, if any thereof
shall not have been exercised, the Pro Forma Trigger Price per share shall
forthwith be readjusted and thereafter be the price which it would have been had
an adjustment been made on the basis that the only shares of Common Stock so
issued or sold were those issued or sold upon the exercise of such rights or
options and that they were issued or sold for the consideration actually
received by the Company upon such exercise, plus the consideration, if any,
actually received by the Company for the granting of all such rights or options,
whether or not exercised.
4.4. Grant of Rights or Options for Convertible Securities. In case
the Company shall grant any rights or options to subscribe for, purchase or
otherwise acquire Convertible Securities, such Convertible Securities shall be
deemed, for the purposes of subparagraph 4.2. above, to have been issued or sold
for the total amount received or receivable by the Company as consideration tor
the granting of such rights or options plus the minimum aggregate amount of
additional consideration, if any, payable to the Company upon the exercise of
such rights or options, provided that, upon the expiration of such rights or
options, if any thereof shall not have been exercised, the Pro Forma Trigger
Price per share shall forthwith be readjusted and thereafter be the price which
it would have been had an adjustment been made upon the basis that the only
Convertible Securities so issued or sold were those issued or sold upon the
exercise of such rights or options and that they were issued or sold for the
consideration actually received by the Company upon such exercise, plus the
consideration, if any, actually received by the Company for the granting of all
such rights or options, whether or not exercised.
4.5. Dilution in Case of Other Stock or Securities. In case any shares
of stock or other securities, other than Common Stock of the Company, shall at
any time be receivable upon the exercise of this Option, and in case any
additional shares of such stock or any additional such securities (or any stock
or other securities convertible into or exchangeable for any such stock or
securities) shall be issued or sold for a consideration per share such as to
dilute the purchase rights evidenced by this Option, then and in each such case
the Pro Forma Trigger Price per share shall forthwith be adjusted, substantially
in the manner provided for above in this Paragraph 4, so as to protect against
the effect of such dilution.
4.6. Expenses, etc., Deducted. In case any shares of Common Stock or
Convertible Securities or any rights or options to subscribe for, purchase or
otherwise acquire any Common Stock or Convertible Securities shall be issued or
sold for cash, the consideration received therefor shall be deemed to be the
amount received by the Company therefor, after deducting any expenses incurred
and any underwriting or similar commissions, compensation or concessions paid or
allowed by the Company in connection with such issue or sale.
4.7. Determination of Consideration. In case any shares of Common
Stock or Convertible Securities or any rights or options to subscribe for,
purchase or otherwise acquire any Common Stock or Convertible Securities shall
be issued or sold for a consideration other than cash (or a consideration which
includes cash, if any cash constitutes a part of the assets of a
corporation or business substantially all of the assets of which are being
received a such consideration) then, for the purpose of this Paragraph 4, the
Board of Directors of the Company shall promptly determine the fair value of
such consideration, and such Common Stock, Convertible Securities, rights or
options shall be deemed to have been issued or sold on the date of such
determination in good faith. Such value shall not be more than the amount at
which such consideration is recorded in the books of the Company for accounting
purposes except in the case of an acquisition accounted for on a pooling of
interest basis. In case any Common Stock or Convertible Securities or any rights
or options to subscribe for, purchase or otherwise acquire any Common Stock or
Convertible Securities shall be issued or sold together with other stock or
securities or other assets of the Company for a consideration which covers both,
the Board of Directors of the Company shall promptly determine what part of the
consideration so received is to be deemed to be the consideration for the issue
or sale of such Common Stock or Convertible Securities or such rights or
options.
The Company covenants and agrees that, should any determination of
fair value of consideration or of allocation of consideration be made by the
Board of Directors of the Company, pursuant to this subparagraph 4.7, it will,
not less than seven (7) days after any and each such determination, deliver to
you a certificate signed by the President or a Vice President and the Treasurer
or an Assistant Treasurer of the Company reciting such value as thus determined
and setting forth the nature of the transaction for which such determination was
required to be made, the nature of any consideration, other than cash, for which
Common Stock, Convertible Securities, rights or options have been or are to be
issued, the basis for its valuation, the number of shares of Common Stock which
have been or are to be issued, and a description of any Convertible Securities,
rights or options which have been or are to be issued, including their number,
amount and terms.
4.8. Record Date Deemed Issue Date. In case the Company shall take a
record of the holders of shares of its stock of any class for the purpose of
entitling them (a) to receive a dividend or a distribution payable in Common
Stock or in Convertible Securities, or (b) to subscribe for, purchase or
otherwise acquire 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 issued
or sold or deemed to have been issued or sold upon the declaration of such
dividend or the making of such other distribution, or the date of the granting
of such rights of subscription, purchase or other acquisition, as the case may
be.
4.9. Shares Considered Outstanding. The number of shares of Common
Stock outstanding at any given time shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock, but
shall exclude shares in the treasury of the Company.
4.10. Duration of Pro Forma Trigger Price. Following each computation
or readjustment of a Pro Forma Trigger Price as provided in this Paragraph 3,
the newly computed or adjusted Pro Forma Trigger Price shall remain in effect
until a further computation or readjustment thereof is required by this
Paragraph 4.
5. Adjustment for Dividends in Other Stock, Property, Etc.;
Reclassifications, Etc.
In case at any time or from time to time after the Issuance Date the
holders of the Common Stock of the Company of any class (or any other shares of
stock or other securities at the time receivable upon the exercise of this
Option) shall have received, or, on or after the record date fixed for the
determination of eligible stockholders, shall have become entitled to receive:
(a) other or additional stock or other securities or property (other
than cash) by way of dividend;
(b) any cash paid or payable out of capital or paid-in surplus or
surplus created as a result of a revaluation of property by way
of dividend; or
(c) other or additional (or less) stock or other securities or
property (including cash) by way of stock-split, spin-off,
split-off, split-up, reclassification, combination of shares or
similar corporate rearrangement;
(other than additional shares of Common Stock issued to holders of Common Stock
as a stock dividend or stock-split, adjustments in respect of which shall be
covered by the provisions of Paragraph 3 hereof), then in each case, upon the
exercise of this Option as provided in Paragraph 3 hereof, you shall be entitled
to receive, in lieu of, or in addition to, as the case may be, the shares
theretofore receivable upon the exercise of this Option, the amount of stock or
other securities or property (including cash in the cases referred to in clauses
(b) and (c) above) which you would hold on the date of such exercise if, on the
Issuance Date, you had been the holder of record of the number of shares of
Common Stock of the Company called for on the face of this Option and had
thereafter, during the period from the Issuance Date to and including the date
of such exercise, retained such shares and/or all other or additional (or less)
stock or other securities or property (including cash in the cases referred to
in clauses (b) and (c) above) receivable by him as aforesaid during such period,
giving effect to all adjustments called for during such period by Paragraphs 4
and 6 hereof.
6. Adjustment for Reorganization, Consolidation, Merger, Etc.
In case of any reorganization of the Company (or any other corporation
the stock or other securities of which are at the time deliverable on the
exercise of this Option) after the date hereof, or in case, after such date, the
Company (or any such other corporation) shall consolidate with or merge into
another corporation or convey all or substantially all its assets to another
corporation, then and in each such case, upon the exercise hereof as provided in
Paragraph 3 hereof, at any time after the consummation of such reorganization,
consolidation, merger or conveyance, you shall be entitled to receive the stock
or other securities or property to which you would have been entitled upon such
consummation if you had exercised this Option immediately prior thereto, all
subject to further adjustments as provided in Paragraphs 4 and 6
hereof; in each such case, the terms of this Option shall be applicable to the
shares of stock or other securities or property receivable upon the exercise of
this Option after such consummation.
7. No Dilution or Impairment.
The Company will not, by amendment of its charter or through
reorganization, consolidation, merger, dissolution, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or performance of any of
the terms of this Option, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
necessary or appropriate in order to protect against dilution or other
impairment. Without limiting the generality of the foregoing, the Company will
not increase the par value or any shares of stock receivable upon the exercise
of this Option above the amount payable therefor upon such exercise, and at all
times will take all such action as may be necessary or appropriate in order that
the Company may validly and legally issue fully paid and non-assessable stock
upon the exercise of this Option.
8. Accountants' Certificate as to Adjustments.
In each case of an adjustment in the number of shares of Common Stock
or other stock, securities or property receivable on the exercise of this
Option, at your request the Company at its expense shall promptly cause
independent public accountants of recognized standing, selected by the Company,
to compute such adjustment in accordance with the terms of this Option and
prepare a certificate setting forth such adjustment and showing in detail the
facts upon which such adjustment is based, including a statement of (a) the
consideration received or to be received by the Company for any additional
shares issued or sold or deemed to have been issued or sold, (b) the number of
shares of Common Stock outstanding or deemed to be outstanding and (c) the Pro
Forma Trigger Price. The Company will forthwith mail to you a copy of each such
certificate.
9. Notices of Record Date Etc.
In case:
(a) the Company shall take a record of the holders of its Common
Stock (or other stock or securities at the time deliverable upon
the exercise of this Option) for the purpose of entitling or
enabling them to receive any dividend (other than a cash or stock
dividend at the same rate as the rate of the last cash or stock
dividend theretofore paid) or other distribution, or to exercise
any preemptive right pursuant to the Company's charter, or to
receive any right to subscribe for or purchase any shares of
stock of any class or any other securities, or to receive any
other right; or
(b) of any capital reorganization of the Company, any
reclassification of the capital stock of the Company, any
consolidation or merger of the
Company with or into another corporation, or any conveyance of
all or substantially all of the assets of the Company to another
corporation; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then, and in each such case, the Company will mail or cause to be mailed to you
a notice specifying, as the case may be, (i) the date on which a record is to be
taken for the purpose of such dividend, distribution or right, and stating the
amount and character of such dividend, distribution or right, or (ii) the date
on which such reorganization, reclassification, consolidation, merger,
conveyance, dissolution, liquidation or winding up is to take place, and the
times, if any is to be fixed, as of which the holders of record of Common Stock
(or such other stock or securities at the time deliverable upon the exercise of
this Option) shall be entitled to exchange their shares of Common Stock of any
class (or such other stock or securities) for reclassification, consolidation,
merger, conveyance, dissolution, liquidation or winding up or (iii) the amount
and character of the stock or other securities proposed to be issued or granted,
the date of such proposed issuance or grant and the persons or class of persons
to whom such stock or other securities are to be offered, issued or granted.
Such notice shall be mailed at least thirty (30) days prior to the date therein
specified.
10. Reservation of Stock, Etc., Issuable on Exercise of Warrants.
The Company will at all times reserve and keep available, solely for
insurance and delivery upon the exercise of this Option, such shares of Common
Stock and other stock, securities and property as from time to time shall be
issuable upon the exercise of this Option.
11. Registration Rights.
a. Registration. As soon as reasonably practicable after the date
hereof, the Company will file a registration statement ("Registration
Statement") with the Securities and Exchange Commission ("SEC") covering the
shares of Common Stock issuable upon exercise of this Option ("Registrable
Securities"), and will use its best efforts to cause the Registration Statement
to become effective on or prior to the ninetieth day after such filing and to
keep the Registration Statement effective for a period of seven years from the
date it is declared effective by the SEC.
b. Additional Terms. Except as otherwise expressly stated herein, the
following provisions shall be applicable to the Registration Statement:
(i) The Company will use its best efforts to cause the
Registration Statement to become effective as promptly as possible, and if
any stop order shall be issued by the SEC in connection therewith to use
its reasonable efforts to obtain the removal of such order. Following the
effective date of the Registration Statement, the Company shall, upon your
request, forthwith supply such reasonable number of copies of the
Registration Statement, preliminary prospectus and prospectus meeting the
requirements of the Act, and other documents necessary or incidental to a
public offering of the Registrable Securities, as shall be reasonably
requested by you to permit you to make a public distribution of your
Registrable Securities. The Company will use its reasonable efforts to
qualify the Registrable Securities for sale in such states as you shall
reasonably request, provided that no such qualification will be required in
any jurisdiction where, solely as a result thereof, the Company would be
subject to service of general process or to taxation or qualification as a
foreign corporation doing business in such jurisdiction. The obligations of
the Company hereunder with respect to your Registrable Securities are
expressly conditioned on your furnishing to the Company such appropriate
information concerning you, your Registrable Securities and the terms of
your offering of such Registrable Securities as the Company may reasonably
request.
(ii) The Company shall pay all expenses incurred in complying
with the provisions of this Paragraph 11, including, without limitation,
all registration and filing fees (including all expenses incident to filing
with the National Association of Securities Dealers, Inc.), printing
expenses, fees and disbursements of counsel to the Company, securities law
and blue sky fees and expenses and the expenses of any regular and special
audits incident to or required by any such registration. All underwriting
discounts and selling commissions applicable to the sales of the
Registrable Securities, and any state or federal transfer taxes payable
with respect to the sales of the Registrable Securities and all fees and
disbursements of your counsel, if any, in each case arising in connection
with registration of the Registrable Securities shall be payable by you.
(iii) In connection with the registration of the Registrable
Securities pursuant to this Paragraph 11, the Company shall indemnify and
hold harmless you, your affiliates, agents and representatives, each
person, if any, who controls the holder within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
person claiming by or through any of them (collectively, the "Indemnified
Persons") from and against all losses, claims, damages, expenses or
liabilities (or actions in respect thereof) arising out of or are based
upon any untrue statement of any material fact contained in the
Registration Statement or alleged untrue statement, under which such
securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or
supplement thereto, or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to make
the statements made therein, in light of the circumstances under which they
are made, not misleading, or any violation by the Company of the Securities
Act, the Exchange Act or state securities or blue sky laws applicable to
the Company and relating to action or inaction required of the Company in
connection with such registration or qualification under such state
securities or blue sky laws; and will reimburse the Indemnified Persons for
any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such
case to any Indemnified Person to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
omission made in the Registration Statement,
said preliminary prospectus or said final prospectus or said amendment or
supplement or any document incident thereto in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of such Indemnified Person.
(iv) You will indemnify and hold harmless the Company and each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, each officer of the Company who signs
the Registration Statement and each director of the Company from and
against any and all such losses, claims, damages or liabilities arising
from any untrue statement in, or omission from, the Registration Statement,
any such preliminary or final prospectus, amendment, or supplement or
document incident thereto if the statement or omission in respect of which
such loss, claim, damage or liability is asserted was made in reliance upon
and in conformity with information furnished in writing to the Company by
you or on your behalf for use in connection with the preparation of the
Registration Statement or such prospectus or amendment or supplement
thereof.
(v) The reimbursements required by clauses (iii) and (iv) shall
be made by periodic payments during the course of the investigation or
defense as and when bills are received or expenses incurred; provided,
however, that to the extent that an Indemnified Person receives periodic
payments for legal or other expenses during the course of an investigation
or defense, and such person subsequently received payments for such
expenses from any other parties to the proceeding, such payments shall be
used by the Indemnified Person to reimburse the indemnifying party for such
periodic payments. Any party which proposes to assert the right to be
indemnified under clause (iii) or (iv) will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party
in respect of which a claim is to be made against any Indemnified Person
hereunder, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served, but the
failure to so notify such indemnifying party of any such action, suit or
proceeding shall not relieve the indemnifying party from any obligation
which it may have to any Indemnified Person hereunder unless and only to
the extent that the indemnifying party is prejudiced by said lack of
notice. In case any such action, suit or proceeding shall be brought
against any Indemnified Person and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such Indemnified Person, and after notice from
the indemnifying party to such Indemnified Person of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such Indemnified Person for any legal or other expense, other than
reasonable costs of investigation subsequently incurred by such Indemnified
Person in connection with the defense thereof. The Indemnified Person shall
have the right to employ its own counsel in any such action, but the
reasonable fees and expenses of such counsel shall be at the expense of
such Indemnified Person, when and as incurred, unless (A) the employment of
counsel by such Indemnified Person has been authorized by the indemnifying
party, (B) the Indemnified Person has reasonably concluded (based on advice
of counsel), that there
may be legal defenses available to it that are different from or in
addition to those available to the indemnifying party, (C) the Indemnified
Person shall have reasonably concluded (based on advice of counsel) that
there may be a conflict of interest between the indemnifying party and the
Indemnified Person in the conduct of defense of such action (in which case
the indemnifying party shall not have the right to direct the defense of
such action on behalf of the Indemnified Person), or (D) the indemnifying
party shall not in fact have employed counsel to assume the defense of such
action within 15 days after receipt of notice of such action. An
indemnifying party shall not be liable for any settlement or any action or
claim effected without its consent.
(vi) If the indemnification provided for in this Paragraph 11 is
unavailable to any Indemnified Person hereunder in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then the
indemnifying party, in lieu of indemnifying such Indemnified Person, shall
contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party and Indemnified Persons in connection with the actions
that resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of
such indemnifying party and Indemnified Persons shall be determined by
reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact, has been made by, or relates to
information supplied by, such indemnifying party or Indemnified Persons,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. 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 herein, any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(vii) The Company and you agree that it would not be just and
equitable if contribution pursuant to clause (vi) 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 any other provision hereof, in no
event shall your contribution obligation be greater in amount than the
excess of (A) the dollar amount of proceeds received by you upon the sale
of the securities giving rise to such contribution obligation over (B) the
dollar amount of any damages that you have otherwise been required to pay
by reason of the untrue or alleged untrue statement or omission or alleged
omission giving rise to such obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
(viii) Neither the filing of the Registration Statement by the
Company pursuant to this Agreement nor the making of any request for
prospectuses by you shall impose upon you any obligation to sell his, her
or its Registrable Securities.
(ix) Upon receipt of notice from the Company that an event has
occurred which requires a post-effective amendment to the Registration
Statement or a supplement to the prospectus included therein, you shall
promptly discontinue the sale of your Registrable Securities until you
receive a copy of a supplemented or amended prospectus from the Company,
which the Company shall provide as soon as practicable after such notice.
12. How Option May be Exercised.
This option is exercisable by a written notice signed by you and
delivered to the Company at 000-00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000,
attention of the Office of the President, signifying your election to exercise
the option. The notice must state the number of shares of Common Stock as to
which your option is being exercised, must contain a statement by you (in a form
acceptable to the Company) that such shares are being acquired by you for
investment and not with a view to their distribution or resale and must be
accompanied by cash or a check to the order of the Company for the full purchase
price of the shares being purchased.
If a notice of the exercise of this option is given by a person or
persons other than you, the Company may require as a condition to the exercise
of the option the submission to the company of appropriate proof of the right of
such person or persons to exercise the option.
Certificates for shares of the Common Stock so purchased will be
issued as soon as practicable. Except as otherwise provided herein, the Company,
however, shall not be required to register with the Securities and Exchange
Commission or any other applicable state authority any shares of Common Stock
issued upon exercise of this option and your right to sell, transfer, assign or
otherwise dispose of such shares shall be subject to your compliance with all
applicable federal and state securities laws.
13. Non-transferability of Option.
This option shall not be transferable except by Will or the laws of
descent and distribution, and, may be exercised during your lifetime only by
you.
Dated: May 1, 1996 LOGIMETRICS, INC.
By:/s/Xxxxxx X. Xxxxxx
____________________________
Xxxxxx X. Xxxxxx
Agreed:
/s/Xxxxxxx X. Xxxxxxx
_________________________
Xxxxxxx X. Xxxxxxx
