EXHIBIT 9
REGISTRATION RIGHTS AGREEMENT
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EXHIBIT 9
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of October __,
1998, among LogiMetrics, Inc., a Delaware corporation (the "Company"), and the
parties whose names appear on the signature pages hereof.
W I T N E S S E T H:
WHEREAS, the Company and the parties hereto (the "Purchasers") have
entered into a Purchase Agreement of even date herewith (the "Purchase
Agreement") pursuant to which the Company has agreed to sell to such parties
$2,666,667 in aggregate principal amount of its Class C 13% Senior Subordinated
Debentures (the "Debentures"); and
WHEREAS, the Debentures are convertible into shares (the "Debenture
Shares") of the Company's common stock, par value $.01 per share; and
WHEREAS, the Company has agreed to effect the registration of Debenture
Shares on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, and intending to be legally bound, the parties hereto
hereby agree as follows:
1. Certain Definitions.
For purposes of this Agreement, the following terms have the following
meanings when used herein:
(a) "Affiliate" means, with respect to any Person, means any other Person
who directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, and the terms
"controlled" and "controlling" have meanings correlative thereto.
(b) "Business Day" means any day other than a Saturday or Sunday on which
banking institutions in New York, New York are open for the general conduct of
business.
(c) "Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
(d) "Common Stock" means the Common Stock, par value $.01 per share, of
the Company.
(e) "Company" means LogiMetrics, Inc., a Delaware corporation, and its
successors and assigns.
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(f) "Demand Registration" means any registration of Registrable Securities
effected pursuant to Section 2.
(g) "Effective Date" means the earlier of (i) September 1, 1999 and (ii)
the termination of the engagement letter, dated August 7, 1998, by and between
the Company and Xxxxxxxxx Xxxxxx Xxxxxxxx Securities Corporation.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any similar successor federal statute), and the rules and regulations
thereunder, as in effect from time to time.
(i) "Holders" means the Purchasers party to the Purchase Agreement or any
permitted transferees thereof holding Registrable Securities.
(j) "Majority Registered Holders" means, in the case of any registration
statement, the Holders of a majority of the Registrable Securities proposed to
be covered in such registration statement (or that are actually so covered).
(k) "Person" means any individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture, or other entity, or a government or
any political subdivision or agency.
(l) "Piggyback Registration" means any registration of Registrable
Securities effected pursuant to Section 3.
(m) "Registrable Securities" means (i) the Debenture Shares, and (ii) any
securities issued or issuable in respect of or in exchange for any of the
Debenture Shares by way of stock dividend or other distribution on the Common
Stock, stock split or combination of shares, recapitalization, reclassification
merger, consolidation or exchange offer. For purposes hereof, a Registrable
Security ceases to be a Registrable Security when either (x) it has been
effectively registered under the Securities Act and sold or distributed to any
Person pursuant to an effective registration statement covering it or (y) it has
been sold or distributed to any Person pursuant to Rule 144 or Rule 145(d).
(n) "Registration" means any Demand Registration or Piggyback
Registration.
(o) "Rule 10b-6" means Rule 10b-6 promulgated by the Commission under the
Exchange Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
(p) "Rule 144," "Rule 145" and "Rule 424" mean, respectively, Rule 144,
Rule 145 and Rule 424, each promulgated by the Commission under the Securities
Act, in each case as amended from time to time, or any similar successor rule
thereto that may be promulgated by the Commission.
(q) "Securities Act" means the Securities Act of 1933, as amended (or any
similar successor federal statute), and the rules and regulations thereunder, as
the same are in effect from time to time.
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2. Demand Registrations.
(a) At any time after the Effective Date and until the earlier of (i) the
date that all of the Registrable Securities may be freely resold by the Holders
thereof pursuant to Rule 144(k) and (ii) two years from the conversion of all of
the Debentures (the "Registration Rights Period"), upon written notice to the
Company from one or more Holders of Registrable Securities who held on the
Effective Date (together with their Affiliates at such time) in the aggregate
not less than 50% of the Debenture Shares (the Holders furnishing such written
notice being hereinafter referred to as the "Initiating Holders") requesting
that the Company effect, pursuant to this Section 2, the registration of any or
all of such Initiating Holders' Registrable Securities under the Securities Act
(which notice shall specify (A) the Registrable Securities so requested to be
registered, (B) the proposed amounts thereof (which in the aggregate shall equal
at least (x) 50% of the Debenture Shares, or (y) if such Registrable Securities
are all of the remaining Registrable Securities held by the Initiating Holders,
25% of the Debenture Shares), and (C) the intended method of disposition by such
Initiating Holders, including whether or not the proposed offering is to be
underwritten), the Company shall promptly (but in any event within 20 days) give
written notice of such requested registration to all Holders, and thereupon the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration under the Securities Act of:
(x) the Registrable Securities that the Initiating Holders have
requested the Company to register, for disposition in accordance with the
intended method of disposition stated in their notice to the Company; and
(y) all other Registrable Securities the Holders of which shall have
made a written request to the Company for registration thereof (which
request shall specify such Registrable Securities and the proposed amounts
thereof) within 30 days after the receipt of such written notice from the
Company,
all to the extent requisite to permit the disposition (in accordance with the
method of disposition specified in the notice given to the Company by the
Initiating Holders) by Holders of the securities then constituting Registrable
Securities so to be registered.
(b) Number of Demand Registrations: Duration: Sale of Registrable
Securities. Notwithstanding the provisions of Section 2(a), the Company shall
not be required to effect a Demand Registration pursuant to this Section 2: (i)
if a Demand Registration has previously been effected by the Company pursuant to
this Section 2 within one year of the date on which notice is given by the
Initiating Holders pursuant to Section 2(a); or (ii) if the Company shall
previously have effected two Demand Registrations; provided that a Demand
Registration shall not be deemed to have been effected for purposes of the
limitations of this Section 2(b) unless the applicable registration statement
was declared effective and kept effective until the earlier of (A) nine months
following the date on which it was declared effective and (B) the sale pursuant
thereto of all of the Registrable Securities covered thereby. A request from
Initiating Holders pursuant to Section 2(a) shall be deemed withdrawn upon
commencement of a Black-Out Period (as defined in Section 4(c)).
(c) Inclusion of Other Securities. The Company shall not include
securities in any Demand Registration other than (i) Registrable Securities, and
(ii) securities entitled to
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piggyback registration rights granted by the Company prior to the date hereof
without the prior written consent of the Majority Registered Holders which shall
not be unreasonably withheld or delayed.
3. Piggyback Registrations.
(a) Effective Registration. If prior to the end of the Registration Rights
Period the Company proposes to file a registration statement under the
Securities Act with respect to any class of equity securities (other than in
connection with the registration of equity securities issued or issuable
pursuant to a dividend reinvestment, employee stock option, stock purchase,
stock bonus or similar plan or pursuant to a merger, exchange offer or
transaction of the type specified in paragraph (a) of Rule 145) at any time,
then the Company shall give written notice of such proposed filing to the
Holders at least 20 days before the anticipated filing date, and such notice
shall offer the Holders the opportunity to register such amount of Registrable
Securities as each such Holder may request. The Company shall use its best
efforts to cause the managing underwriter or underwriters of a proposed
underwritten offering to permit the inclusion therein of any Registrable
Securities the Holders of which request, within 15 days after receiving written
notice of the proposed filing from the Company, such inclusion, at the same
initial public offering price and subject to the same underwriting discount and
commissions as any similar securities of the Company so included. Any Holder's
request for such inclusion may be withdrawn, in whole or in part, at any time
prior to the effective date of the registration statement for such offering.
(b) Number of Piggyback Registrations: Duration: Sale of Registrable
Securities. Notwithstanding the provisions of Section 3(a) but subject to the
second proviso to Section 3(c), the Company shall not be required to effect a
Piggyback Registration pursuant to this Section 3 in response to a request made
pursuant to Section 3(a) if the Company shall previously have so effected three
Piggyback Registrations in response to such requests; provided that a Piggyback
Registration shall not be deemed to have been effected for purposes of this
limitation unless, in respect thereof, the following conditions (hereinafter,
the "Conditions") were satisfied: (i) the applicable registration statement
covered the full amount of Registrable Securities requested to be so covered by
each Holder, without any reductions in any such amount pursuant to Section 3(c)
or otherwise, except as a result of withdrawals pursuant to the last sentence of
Section 3(a); and (ii) the applicable registration statement was declared
effective and kept effective until the earlier of (A) nine months following the
date on which it was declared effective and (B) the sale pursuant thereto of all
of the Registrable Securities covered thereby, provided, that such non-month
period shall be tolled during a Black-Out Period (as defined in Section 4(b)).
(c) Cut-Backs. Notwithstanding the provisions of Section 3(a), if the
managing underwriter or underwriters of a proposed underwritten offering as
described in Section 3(a) deliver a written opinion to the Holders requesting
inclusion of their Registrable Securities, stating that the total amount or kind
of securities that they or any other Persons (other than the Company) seek to
include in such offering would materially and adversely affect the success of
such offering, then, in addition to the number of such securities being included
in the offering for the account of the Company, the Company shall be required to
include in the offering only that number of additional such securities,
including Registrable Securities (collectively, the "Additional Securities"),
which the underwriters determine in their sole discretion will not jeopardize
the success of the offering, and the Additional Securities so included shall be
apportioned pro rata among the selling stockholders and the Holders of
Registrable Securities
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according to the total amount of securities requested to be included therein by
each selling stockholder and the Holders or in such other proportions as shall
mutually be agreed to by such selling stockholders and the Holders.
(d) Control by the Company. The Company may withdraw any registration
statement and abandon any proposed offering initiated by the Company without the
consent of any Holder of Registrable Securities, notwithstanding the request of
any such Holder to participate therein in accordance with this Section 3, if the
Board of Directors of the Company determines in its sole discretion that such
action is in the best interests of the Company.
4. Holdback Agreements; Blackouts.
(a) Restrictions on Public Sales by Holders of Registrable Securities. To
the extent not inconsistent with applicable law, each Holder whose Registrable
Securities are included in a Registration that is timely notified in writing by
the managing underwriter or underwriters shall not effect any public sale or
distribution (including a sale pursuant to Rule 144) of any issue being
registered in an underwritten offering (other than pursuant to a dividend
reinvestment, employee stock option, stock purchase, stock bonus or similar
plan, pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) or pursuant to a "shelf" registration), any securities
of the Company similar to any such issue or any securities of the Company
convertible into or exchangeable or exercisable for any such issue, during the
10-day period prior to, and during the 180-day period beginning on, the
effective date of the applicable registration statement (or, if later, the date
on which a bona fide offering of the securities covered thereby commences),
except as part of such Registration.
(b) Restrictions on Public Sales by the Company. The Company shall not
effect any public sale or distribution for its own account of any issue being
registered in an underwritten offering (other than pursuant to a dividend
reinvestment, employee stock option, stock purchase, stock bonus or similar
plan, pursuant to a merger, exchange offer or a transaction of the type
specified in Rule 145(a) under the Securities Act or pursuant to a "shelf"
registration), any securities of the Company similar to any such issue or any
securities of the Company convertible into or exchangeable or exercisable for
any such issue, during the 10-day period prior to, and during the 180-day period
beginning on, the effective date of the applicable registration statement (or,
if later, the date on which a bona fide offering of the securities covered
thereby commences), except as part of such Registration.
(c) Black-Outs. Notwithstanding the provisions of Sections 2 and 3, the
Company may, by giving written notice to the Holders at any time prior to the
effectiveness of the applicable registration statement, delay effecting a Demand
Registration or a Piggyback Registration for a reasonable period of time (the
"Black-Out Period") not to exceed:
(i) 90 days, if at the time the Company is otherwise engaged in an
issuer tender offer (within the meaning of Section 13(e) of the Exchange Act)
for securities of the same class (within the meaning of the Exchange Act) as the
Registrable Securities that are proposed to be registered and sold; provided
that the Board of Directors of the Company shall have determined in good faith,
based on advice of counsel to the Company, that such issuer tender offer may
not, under Rule 10b-6, be continued and consummated if offers or sales of
Registrable Securities were to be made pursuant to such Demand Registration or
Piggyback Registration; provided, further, that the Company, if requested by the
Majority Registered Holders, shall
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cooperate with the Holders to obtain from the staff of the Commission a
no-action letter to the effect that the staff would not recommend enforcement
action to the Commission with respect to Rule 10b-6, or would grant an exemption
from Rule 10b-6, in the event such offers and sales were to be so made; and
(ii) 90 days, if at the time the Company is otherwise engaged in a
financing, acquisition, corporate reorganization or other material transaction
whose disclosure in the good faith judgment of the Board of Directors of the
Company would (a) be detrimental to the interests of the Company and (b) based
on advice of counsel to the Company, be required in connection with such Demand
Registration or Piggyback Registration.
5. Registration Procedures.
(a) Company Procedures. Whenever the Company is required by this Agreement
to effect the registration of any Registrable Securities under the Securities
Act pursuant to a registration statement, the Company shall use its best efforts
to effect each such registration to permit the sale of such Registrable
Securities in accordance with the intended method or methods of disposition
thereof, and pursuant thereto the Company shall, as soon as practicable:
(i) prepare and file with the Commission the requisite registration
statement to effect such registration and thereafter use its best efforts to
cause such registration statement to be declared effective as soon as
practicable and to remain continuously effective for the time period required by
this Agreement to the extent permitted under the Securities Act, provided that
as soon as practicable but in no event later than three Business Days before
filing such registration statement, any related prospectus or any amendment or
supplement thereto, other than any amendment or supplement made solely as a
result of incorporation by reference of documents filed with the Commission
subsequent to the filing of such registration statement, the Company shall
furnish to the Holders of the Registrable Securities covered by such
registration statement and the underwriters, if any, copies of all such
documents proposed to be filed, which documents shall be subject to the review
of such Holders and underwriters; the Company shall not file any registration
statement or amendment thereto or any prospectus or any supplement thereto
(other than any amendment or supplement made solely as a result of incorporation
by reference of documents filed with the Commission subsequent to the filing of
such registration statement) to which the managing underwriters of the
applicable offering, if any, or the Majority Registered Holders shall have
reasonably objected in writing, within two Business Days after receipt of such
documents, to the effect that such registration statement or amendment thereto
or prospectus or supplement thereto does not comply in all material respects
with the requirements of the Securities Act and specifying in reasonable detail
the reasons therefor (provided that the foregoing shall not limit the right of
any Holder whose Registrable Securities are covered by a registration statement
to reasonably object, within two Business Days after receipt of such documents,
to any particular information that is to be contained in such registration
statement, amendment, prospectus or supplement and relates specifically to such
Holder, including without limitation any information describing the manner in
which such Holder acquired such Registrable Securities and the intended method
of distribution of such Registrable Securities), and if the Company is unable to
file any such document due to the objections of such underwriters or such
Holders, the Company shall use its best efforts to cooperate with such
underwriters and Holders to prepare, as soon as practicable, a document that is
responsive in all material respects to the reasonable objections of such
underwriters and Holders;
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(ii) prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be necessary to
keep such registration statement continuously effective and current for the
period required by this Agreement to the extent permitted under the Securities
Act; cause each related prospectus to be supplemented by any prospectus
supplement as may be required, and as so supplemented to be filed pursuant to
Rule 424, if required; and otherwise use its best efforts to comply with the
provisions of the Securities Act as may be necessary to facilitate the
disposition of all Registrable Securities covered by such registration statement
during the applicable period and in accordance with the intended method of
disposition by the selling Holders thereof set forth in such registration
statement or such prospectus or prospectus supplement;
(iii) notify the Holders and the managing underwriters, if any, of
the applicable offering (providing, if requested by any such Persons,
confirmation in writing) as soon as practicable after becoming aware of: (A) the
filing of any prospectus or prospectus supplement or the filing or effectiveness
(or anticipated date of effectiveness) of such registration statement or any
post-effective amendment thereto; (B) any request by the Commission for
amendments or supplements to such registration statement or the related
prospectus or for additional information; (C) the issuance by the Commission of
any stop order suspending the effectiveness of such registration statement or
the initiation of any proceedings for that purpose; (D) the receipt by the
Company of any notification with respect to the suspension of the qualification
or registration (or exemption therefrom) of any Registrable Securities for sale
in any jurisdiction in the United States or the initiation or threatening of any
proceeding for such purposes; or (B) the happening of any event that makes any
statement made in such registration statement or in any related prospectus,
prospectus supplement, amendment or document incorporated therein by reference
untrue in any material respect or that requires the making of any changes in
such registration statement or in any such prospectus, supplement, amendment or
other such document so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein (in the case of any prospectus or
supplement in the light of the circumstances under which they were made) not
misleading;
(iv) use its best efforts to obtain at the earliest possible moment
the withdrawal of any order or other action suspending the effectiveness of any
such registration statement or suspending the qualification or registration (or
exemption therefrom) of the Registrable Securities for sale in any jurisdiction;
(v) if reasonably requested by the managing underwriters, if any, of
the applicable offering, or by the Majority Registered Holders, as soon as
practicable incorporate in a prospectus supplement or post-effective amendment
such information as such underwriters or the Majority Registered Holders, as the
case may be, agree should be included therein relating to the sale and offering
of the applicable Registrable Securities, including without limitation
information with respect to the number of Registrable Securities being sold to
any underwriters, the purchase price being paid therefor by any such
underwriters and any other terms of the offering of the Registrable Securities;
and make all required filings of such prospectus supplement or post-effective
amendment as soon as practicable following receipt of notice of the matters to
be incorporated therein;
(vi) as soon as practicable after filing such documents with the
Commission, furnish to the Holders and each of the underwriters, if any, without
charge, at least one manually
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signed or conformed copy of such registration statement and any post-effective
amendment thereto, including financial statements and schedules; and as soon as
practicable after the request of any Holder or underwriter, furnish to such
Holder or underwriter, as the case may be, at least one copy of any document
incorporated by reference in such registration statement or in any related
prospectus, prospectus supplement or amendment, together with all exhibits
thereto (including those previously furnished or incorporated by reference);
(vii) deliver to the Holders and to each of the underwriters, if
any, without charge, as many copies of the prospectus or prospectuses (including
each preliminary prospectus) and any amendment or supplement thereto as such
Persons may reasonably request; subject to Section 5(b)(i), the Company consents
to the use of any such prospectus or any amendment or supplement thereto by the
Holders and the underwriters, if any, in connection with the offering and sale
of the Registrable Securities covered by any such prospectus or any amendment or
supplement thereto;
(viii) prior to any public offering of Registrable Securities,
register or qualify, or obtain an exemption therefrom (with the cooperation of
the Holders, the underwriters, if any, and their respective counsel in
connection therewith to the extent necessary) of, such Registrable Securities
for offer and sale under the securities or blue sky laws of such jurisdictions
in the United States as the Holders or the underwriters, if any, shall
reasonably request in writing; use its best efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
period during which such registration statement is required to be kept effective
pursuant to this Agreement, to the extent permitted under the Securities Act;
and do any and all other acts and things reasonably necessary or advisable to
facilitate the disposition in such jurisdictions of the Registrable Securities
covered by such registration statement; provided that the Company shall not be
required to qualify to do business in any jurisdiction where it would not be
required so to qualify but for this Section 5(a)(viii);
(ix) cooperate with Holders participating in such registration and
the underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be sold; and enable such
Registrable Securities to be in such denominations and registered in such names
as the underwriters, if any, may request at least two Business Days prior to any
sale of Registrable Securities to the underwriters;
(x) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities in the United States as may be reasonably
necessary to enable the Holders or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(xi) as soon as practicable after the occurrence of any event
described in Section 5(a)(iii)(E), prepare a supplement or post-effective
amendment to such registration statement or to the related prospectus or any
document incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, such prospectus shall not contain an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein not misleading; if any event described in Section
5(a)(iii)(B) occurs, use its best efforts to cooperate with the Commission to
prepare, as soon as practicable, any amendment or supplement to such
registration statement or such related prospectus and any other additional
information, or to take other action that may have been requested by the
Commission;
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(xii) use its best efforts to cause all Common Stock constituting
Registrable Securities covered by such registration statement to be listed on
each securities exchange (or quotation system operated by a national securities
association), if any, on which the Common Stock of the Company is then listed
(or included), if so requested by the Majority Registered Holders or the
underwriters, if any, and enter into customary agreements including, if
necessary, a listing application and indemnification agreement in customary
form, and provide a transfer agent for such Registrable Securities no later than
the effective date of such registration statement; use its best efforts to cause
any other Registrable Securities covered by such registration statement to be
listed (or included) on each securities exchange (or quotation system operated
by a national securities association) on which securities of the same class and
series, if any, are then listed (or included) (or on any exchange or quotation
system on which any Person other than a Holder shall have the right to have
securities of the same class and series, if any, listed or included), if so
requested by the Majority Registered Holders or the underwriters, if any, and
enter into customary agreements including, if necessary, a listing application
and indemnification agreement in customary form, and, if necessary, provide a
transfer agent for such securities no later than the effective date of such
registration statement;
(xiii) provide a CUSIP number for the Registrable Securities no
later than the effective date of such registration statement;
(xiv) enter into customary agreements (including, in the case of an
underwritten offering, an underwriting agreement in customary form for the
managing underwriters with respect to issuers of similar market capitalization
and reporting and financial histories) and take all such other appropriate
actions in connection therewith in order to expedite or facilitate the
disposition of the Registrable Securities included in such registration
statement and, in the case of an underwritten offering: (A) make representations
and warranties to each Holder of Registrable Securities participating in such
offering and to each of the underwriters, in such form, substance and scope as
are customarily made to the managing underwriters by issuers of similar market
capitalization and reporting and financial histories and confirm the same to the
extent customary if and when requested; (B) obtain opinions of counsel to the
Company addressed to each Holder of Registrable Securities participating in such
offering and to each of the underwriters, such opinions to be in customary form
and covering the matters customarily covered in opinions obtained in
underwritten offerings by the managing underwriters for issuers of similar
market capitalization and reporting and financial histories; (C) use its best
efforts to obtain "comfort" letters from the Company's independent certified
public accountants addressed to each Holder of Registrable Securities
participating in such offering and to each of the underwriters, such letters to
be in customary form and covering matters of the type customarily covered in
"comfort" letters to the managing underwriters in connection with underwritten
offerings by them for issuers of similar market capitalization and reporting and
financial histories; (D) provide, in the underwriting agreement or agency
agreement to be entered into in connection with such offering, indemnification
and contribution provisions and procedures no less favorable than those set
forth in Section 7 with respect to all parties to be indemnified pursuant to
Section 7; and (E) deliver such customary documents and certificates as may be
reasonably requested by the Majority Registered Holders and the managing
underwriters to evidence compliance with clause (A) of this paragraph (xiv) and
with any customary conditions contained in the underwriting agreement entered
into by the Company in connection with such offering;
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(xv) in the case of any nonunderwritten offering: (A) obtain an
opinion of counsel to the Company at the time of effectiveness of such
registration statement covering such offering and an update thereof at the time
of effectiveness of any post-effective amendment to such registration statement
(other than by reason of incorporation by reference of documents filed with the
Commission) addressed to each Holder of any Registrable Securities covered by
such registration statement, covering matters that are no more extensive in
scope than would be customarily covered in opinions obtained in underwritten
offerings by issuers with similar market capitalization and reporting and
financial histories; (B) use its best efforts to obtain a "comfort" letter from
the Company's independent certified public accountants at the time of
effectiveness of such registration statement and, upon the request of the
Majority Registered Holders, updates thereof, in each case addressed to each
Holder of Registrable Securities participating in such offering and covering
matters that are no more extensive in scope than would be customarily covered in
"comfort" letters and updates obtained in underwritten offerings by issuers with
similar market capitalization and reporting and financial histories; and (C)
deliver a certificate of a senior executive officer of the Company at the time
of effectiveness of such registration statement and, upon the request of the
Majority Registered Holders, updates thereof, such certificates to cover matters
no more extensive in scope than those matters customarily covered in officers'
certificates delivered in connection with underwritten offerings by issuers with
similar market capitalization and reporting and financial histories;
(xvi) make available, for inspection by the Holders of the
Registrable Securities included in such registration, any underwriter
participating in any disposition of Registrable Securities pursuant to such
registration statement, and any attorney, accountant or other representative
retained by such selling Holders or by any such underwriter, all pertinent
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such underwriter, attorney, accountant
or other representative in connection with such registration, provided that no
record, document or property that is subject to a claim of privilege need be
made available for inspection by any Person pursuant to this clause (xvi) if
inspection thereof by such Person could, in the opinion of the Company's
counsel, result in the waiver of such privilege;
(xvii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission relating to such registration and the
distribution of the securities being offered (including, without limitation,
Rule l0b-6, with respect to which the Company shall also use its best efforts
timely to apprise each Holder of any bids and purchases by the Company, and of
any known bids and purchases by each "affiliated purchaser" (as defined in Rule
l0b-6) of the Company, that would in the opinion of the Company be prohibited
under Rule l0b-6 in connection with a "distribution" (as so defined) by such
Holder of securities of the Company) and make generally available to its
security holders earning statements satisfying the provisions of Section 11(a)
of the Securities Act (including Rule 158 thereunder), not later than 60 days
after the end of any 12-month period (or 120 days, if such period is a fiscal
year) commencing at the end of any fiscal quarter in which the Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, or, if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of such registration statement, which earning
statements shall cover such 12-month periods;
Page 138 of 149
(xviii) cooperate and assist in any filings required to be made with
the National Association of Securities Dealers, Inc. and in the performance of
any customary or required due diligence investigation by any underwriter,
provided that no record, document or property that is subject to a claim of
privilege need be made available for investigation by any underwriter pursuant
to this clause (xviii) if investigation thereof by such underwriter could, in
the opinion of the Company's counsel, result in the waiver of such privilege;
and
(xix) use its best efforts to effect such registration in the manner
contemplated by this Agreement.
(b) Holder Procedures.
(i) Each Holder agrees, by acquisition of the Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
described in Section 5(a)(iii) (B), 5(a) (iii) (C), 5(a)(iii)(D) or
5(a)(iii)(E), such Holder shall forthwith discontinue disposition of any
Registrable Securities (but, in the case of an event described in Section
5(a)(iii)(D), in the affected jurisdiction or jurisdictions only) covered by the
affected registration statement or prospectus until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
5(a)(iii) or 5(a)(xi) or until such Holder is (it being agreed by the Company
that the underwriters, if any, shall also be) advised in writing (the "Advice")
by the Company that the use of the applicable prospectus may be resumed. If the
Company shall have given any such notice during a period when a Demand
Registration or Piggyback Registration is in effect, the one-year period
mentioned in Section 2(b) or Section 3(b), as the case may be, shall be extended
by the number of days from and including the date of the giving of such notice
to and including the date when each Holder of Registrable Securities included in
such Registration shall have received the copies of the supplemented or amended
prospectus contemplated by Section 5(a)(iii) or 5(a)(xi) or the Advice, as the
case may be.
(ii) In connection with any underwritten public offering of
Registrable Securities, the managing underwriter of such offering shall be, (A)
in the case of a Demand Registration, a nationally recognized investment banking
firm selected by the Majority Registered Holders and reasonably acceptable to
the Company and (B) in the case of a Piggyback Registration, a nationally
recognized investment banking firm selected by the Company and reasonably
acceptable to the Majority Registered Holders.
6. Registration Expenses.
All expenses incident to the Company's performance of or compliance with
the provisions of this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws (including fees and disbursements of counsel in connection with blue sky
qualifications or registrations (or the obtaining of exemptions therefrom) of
the Registrable Securities), printing expenses (including expenses of printing
prospectuses), messenger and delivery expenses, internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), fees and disbursements of its counsel
and its independent certified public accounts (including the expenses of any
special audit or "comfort" letters required by or incident to such performance
or compliance), securities acts liability insurance (if the Company elects to
obtain such insurance), fees and expenses of any special experts retained by the
Company in connection with such Registration, fees and expenses of other Persons
retained by the Company shall be
Page 139 of 149
borne by the Company. Each Holder shall bear the fees and expenses of its
counsel, the out-of-pocket expenses of the Holders incurred in connection
herewith and any underwriting discounts, commissions or fees attributable to the
sale of Registrable Securities included in any Registration.
7. Indemnification: Contribution.
(a) Indemnification by the Company. The Company shall indemnify, to the
full extent permitted by law, each Holder of Registrable Securities, its
officers, directors, employees and agents, each Person who controls such Holder
(within the meaning of the Securities Act) and any investment adviser thereof or
agent therefor, against all losses, claims, damages, liabilities and expenses
(including costs of investigation and legal expenses) arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in any
registration statement covering any Registrable Securities, any related
prospectus or preliminary prospectus, or any amendment or supplement thereto, or
any omission or alleged omission to state in any thereof a material fact
required to be stated therein or necessary to make the statements therein (in
the case of a prospectus or prospectus supplement, in light of the circumstances
under which they were made) not misleading, except in each case insofar, but
only insofar, as the same arises out of or is based upon an untrue statement or
alleged untrue statement of a material fact or an omission or alleged omission
to state a material fact in such registration statement, prospectus, preliminary
prospectus, amendment or supplement, as the case may be, made or omitted, as the
case may be, in reliance upon and in conformity with written information
furnished to the Company by such Holder expressly for use therein. This
indemnity is in addition to any liability that the Company may otherwise have.
The Company shall also indemnify any underwriters of the Registrable Securities,
selling brokers, dealer managers and similar securities industries professionals
participating in the distribution and their officers and directors and each
Person who controls such underwriters or other Persons (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of Holders and other specified Persons.
(b) Indemnification by Holders of Registrable Securities. In connection
with any registration statement covering Registrable Securities, each Holder any
of whose Registrable Securities are covered thereby shall furnish to the Company
in writing such information and affidavits with respect to such Holder as the
Company reasonably requests for use in connection with such registration
statement, any related prospectus or preliminary prospectus, or any amendment or
supplement thereto, and shall indemnify, to the full extent permitted by law,
the Company, the Company's directors, officers, employees and agents, each
Person who controls the Company (within the meaning of the Securities Act) and
any investment adviser thereof or agent therefor, against all losses, claims,
damages, liabilities and expenses (including costs of investigation and legal
expenses) arising out of or based upon any untrue or alleged untrue statement of
a material fact contained in any registration statement covering any Registrable
Securities, any related prospectus or preliminary prospectus, or any amendment
or supplement thereto, or any omission or alleged omission to state in any
thereof a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus or prospectus supplement, in
light of the circumstances under which they were made) not misleading, in each
case to the extent, but only to the extent, that the same arises out of or is
based upon an untrue statement or alleged untrue statement of a material fact or
an omission or alleged omission to state a material fact in such registration
statement or in such related prospectus, preliminary prospectus, amendment or
supplement, as the case may be, made or omitted, as the case may be, in reliance
upon and in conformity with written information
Page 140 of 149
furnished to the Company by such Holder expressly for use therein.
Notwithstanding any other provision hereof, in no event shall the
indemnification obligation of any Holder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such obligation.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification under this Section 7 agrees to give prompt written notice to the
indemnifying party after the receipt by such Person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such Person will claim indemnification or contribution
pursuant to this Agreement and, unless in the judgment of such indemnified party
a conflict of interest may exist between such indemnified party and the
indemnifying party with respect to such claim, permit the indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to such
indemnified party (which may be regular counsel to the Company). If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it shall not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim, unless in the judgment of counsel to such
indemnified party, expressed in a writing delivered to the indemnifying party, a
conflict of interest may exist between such indemnified party and any other
indemnified party with respect to such claim, in which event the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels (which shall be limited to one counsel per indemnified party). The
indemnifying party shall not be subject to any liability for any settlement made
without its consent, which consent shall not be unreasonably withheld or
delayed.
(d) Contribution.
(i) If the indemnification provided for in this Section 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the 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 indemnifying
party and indemnified parties 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 parties 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 parties, 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 in Section 7(c), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
(ii) The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) 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 the
contribution obligation of any Holder be greater in amount than the excess of
(A) the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities
Page 141 of 149
giving rise to such contribution obligation over (B) the dollar amount of any
damages that such Holder has 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.
(iii) If any provision of an indemnification or contribution clause
in an underwriting agreement or agency agreement executed by or on behalf of a
Holder of Registrable Securities in accordance with Section 5(a)(xiv)(D) differs
from a provision in this Section 7, such provision in the underwriting agreement
shall determine such Holder's rights in respect thereof.
8. Participation in Underwritten Registrations
No Person may participate in any underwritten Registration unless such
Person (a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements, (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and (c) agrees to pay
such Person's pro rata portion of all underwriting discounts and commissions.
9. Cooperation with the Company.
Each Holder by the acceptance of Registrable Securities agrees to use its
best efforts to cooperate with the Company in all reasonable respects in
connection with the preparation and filing of Registrations hereunder in which
such Registrable Securities are included or requested to be included.
10. Miscellaneous.
(a) Modifications in Connection with a Qualifying Offering. In connection
with the consummation of a Qualifying Offering (as such term is defined in the
Purchase Agreement), the registration rights provided hereunder shall be
modified to the extent determined in the reasonable judgment of the Company's
financial advisor to be reasonably necessary to permit consummation of the
Qualifying Offering on the terms most favorable to the Company; provided,
however, that the registration rights granted to the investors in the Qualifying
Offering shall not be more favorable than those granted to the Holders hereunder
(as so modified) without the approval of the Holders of at least a majority of
the Registrable Securities then outstanding. The Holders shall have the right to
participate in discussions with such financial advisor regarding any proposed
change in the terms of this Agreement. The Holders shall execute and deliver
appropriate amendments or supplements to this Agreement necessary to effect any
such modification.
(b) Remedies. Each Holder of Registrable Securities, in addition to being
entitled to exercise all rights in an action at law, including recovery of
damages, shall be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
Page 142 of 149
(c) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company shall have obtained the prior written consent of the Holders
of at least a majority of the securities then constituting Registrable
Securities.
(d) Notices. All notices, requests, waivers, releases, consents, and other
communications required or permitted by this Agreement (collectively, "Notices")
shall be in writing. Notices shall be deemed sufficiently given for all purposes
under this Agreement when delivered in person, when dispatched by telegram or
(upon written confirmation of receipt) by electronic facsimile transmission or
(upon written confirmation of receipt) when dispatched by a nationally
recognized overnight courier service. All Notices shall be delivered as follows:
(i) if to a Holder of Registrable Securities, at the address
indicated on Company's registrar relating to such securities or at such
other address as such Holder may have furnished to the Company in writing;
and
(ii) if to the Company, at:
LogiMetrics, Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: President
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
including any successors to the Company by merger.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings: Construction. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. Unless the context otherwise requires, all references to
Sections are to Sections of this Agreement, "or" is inclusively disjunctive, and
words in the singular include the plural and vice versa. In computing any period
of time specified in this Agreement or in any Notices, the date of the act or
event from which such period of time is to be measured shall be included, any
such period shall expire at 5:00 p.m., New York City time, on the last day of
such period, and any such period denominated in months shall expire on the date
in the last month of such period that has the same numerical designation as the
date of the act or event from which such period is to be measured; provided,
however, that if there is no date in the last month of such period that has the
same numerical designation as the date of such act or event, such period shall
expire on the last day of the last month of such period.
Page 143 of 149
(h) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of laws thereof.
(i) Severability. If one or more of the provisions hereof, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect, for any reason, the validity, legality and
enforceability of the remaining provisions hereof shall not be in any way
affected or impaired thereby, and the provision held to be invalid, illegal or
unenforceable shall be reformed to the minimum extent necessary, and in a manner
as consistent with the purposes thereof as is practicable, so as to render it
valid, legal and enforceable, it being intended that all of the rights and
privileges of the Holders hereunder shall be enforceable to the fullest extent
permitted by law.
(j) Entire Agreement. This Agreement is intended by the Company and the
Purchasers to be a final expression thereof and is intended to be a complete and
exclusive statement of the agreement and understanding of the Company and the
Purchasers in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein. This Agreement supersedes all prior agreements and
understandings among the Company and any Holders with respect to such subject
matter.
[Remainder of page intentionally left blank]
Page 144 of 149
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
LOGIMETRICS, INC.
By: /s/
----------------------------------------
Name:
Title:
L.A.D. EQUITY PARTNERS, L.P.
By: Flint Investments, Inc.
Its General Partner
By: /s/
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
By: /s/
----------------------------------------
Xxxxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Page 145 of 149
By: /s/
----------------------------------------
Xxxxxx X. Xxxxxxxxx, Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
CRM 1998 ENTERPRISE FUND, LLC
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.,
Its Managing Member
By: /s/
----------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
A.C. ISRAEL ENTERPRISES, INC.
By: /s/
----------------------------------------
Name: Xxx Xxxxxx
Title:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Page 146 of 149
CRM-EFO PARTNERS, L.P.
By: CRM-EFO Investments, LLC,
Its General Partner
By: CRM Management, Inc.,
Its Managing Member
By: /s/
----------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title:
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
By: /s/
----------------------------------------
Xxxxxxx X. Xxxx, Xx.
By: Xxxxxx Xxxxxxxxx XxXxxxx, Inc.,
Attorney-in-Fact
By: /s/
----------------------------------------
Name: Xxxxxx X. Xxxxxxx, III
Title: Chief Financial Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Page 147 of 149
XXXXXX EQUITIES CORP.
By: /s/
----------------------------------------
Name:
Title:
3 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
WHITEHALL PROPERTIES, LLC
By: /s/
----------------------------------------
Name:
Title: Manager
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
KABUKI PARTNERS ADP, GP
By: /s/
----------------------------------------
Name:
Title: General Partner
0 Xxx Xxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Page 148 of 149
XxXXXXX FAMILY PARTNERSHIP
By: /s/
----------------------------------------
Name: Xxxxxx X. XxXxxxx
Title: General Partner
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
By: /s/
----------------------------------------
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
By: /s/
----------------------------------------
Xxxxxx X. Xxxxxxx, III
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
By: /s/
----------------------------------------
Xxxxxxx X. Brand
00 Xxxxxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Page 149 of 149
