EXHIBIT 8
FORM OF I WARRANT
Page 113 of 149
EXHIBIT 8
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND CANNOT BE SOLD OR TRANSFERRED
UNLESS AND UNTIL THEY ARE SO REGISTERED OR UNLESS AN EXEMPTION UNDER SUCH ACT OR
LAWS IS AVAILABLE. THE TRANSFERABILITY OF THESE SECURITIES IS FURTHER SUBJECT TO
THE PROVISIONS OF A PURCHASE AGREEMENT DATED AS OF JULY 29, 1997 AMONG THE
COMPANY AND THE PURCHASERS NAMED THEREIN.
LOGIMETRICS, INC.
Common Stock Purchase Warrant - Series I
LOGIMETRICS, INC. (the "Company"), a Delaware corporation, hereby
certifies that, for value received, Xxxxxx X. Xxxxxx, or assigns, is entitled,
subject to the terms set forth below, to purchase from the Company Nineteen
Thousand One Hundred Eighty Six (19,186) fully paid and non-assessable shares of
Common Stock, par value $.01 per share, of the Company (the "Common Stock"), at
a purchase price, subject to the provisions of Paragraph 3 hereof, of $1.125 per
share (the "Purchase Price") at any time prior to July 29, 2004. The number and
character of such shares are subject to adjustment as provided below, and the
term "Common Stock" shall mean, unless the context otherwise requires, the stock
or other securities or property at the time deliverable upon the exercise of
this Warrant.
1. EXERCISE OF WARRANT. The purchase rights evidenced by this Warrant
shall be exercised by the holder hereof ("Holder") surrendering this Warrant,
with the form of subscription at the end hereof duly executed by such Holder, to
the Company at its office in Bohemia, New York (or such other office as may be
designated by the Company from time to time), accompanied by payment (in cash or
by certified or official bank check). This Warrant may be exercised for less
than the full number of shares of Common Stock at the time called for hereby, in
which case the number of shares receivable upon the exercise of this Warrant as
a whole, and the sum payable upon the exercise of this Warrant as a whole, shall
be proportionately reduced. Upon any such partial exercise, the Company at its
expense will forthwith issue to the Holder hereof a new Warrant or Warrants of
like tenor calling for the number of shares of Common Stock as to which rights
have not been exercised, such Warrant or Warrants to be issued in the name of
the Holder hereof or his nominee.
2. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable
after the exercise of this Warrant and payment of the Purchase Price, and in any
event within five (5) business days thereafter, the Company, at its expense,
will cause to be issued in the name of and delivered to the Holder hereof a
certificate or certificates for the number of fully paid and non-assessable
shares of Common Stock or other securities or property to which such Holder
shall be entitled upon such exercise, plus, in lieu of any fractional share
interest to which such Holder would otherwise be entitled, cash equal to such
fraction multiplied by the then current market value of one full share of Common
Stock or other securities to which such Holder shall be so entitled.
3. 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 of issuance of
this Warrant ("Issuance Date"), the Company shall issue or sell shares of its
Common Stock (other
Page 114 of 149
than any Common Stock issuable upon the exercise or conversion of (i) the
Company's Class A 13% Senior Subordinated Convertible Pay-in-Kind Debentures due
1999 (the "Debentures") (and any replacement Debenture or Debentures issued upon
transfer or exchange of the Debentures), (ii) any additional securities issued
in lieu of cash interest otherwise payable on the Debentures ("Accrued Interest
Debentures") (and any replacement Accrued Interest Debenture or Accrued Interest
Debentures issued upon transfer or exchange of the Accrued Interest Debentures),
(iii) the Company's Amended and Restated Class B 13% Convertible Senior
Subordinated Pay-in-Kind Debentures due 1999 (the "Class B Debentures") (and any
replacement Class B Debenture or Class B Debentures issued upon transfer or
exchange of the Class B Debentures), (iv) any additional securities issued in
lieu of cash interest otherwise payable on the Class B Debentures (the "Class B
Accrued Interest Debentures") (and any replacement Class B Accrued Interest
Debenture or Class B Accrued Interest Debentures issued upon transfer or
exchange of the Class B Accrued Interest Debentures), (v) securities outstanding
on the date hereof, (vi) awards made pursuant to the Company's Stock
Compensation Program, (vii) awards made pursuant to any incentive compensation
plan or arrangement approved by the Company's Board of Directors or by the
Compensation Committee of the Company's Board of Directors, (viii) the Company's
Series G Warrants, (ix) the Company's Series H Warrants, or (x) the Company's
Series I Warrants) (such securities, collectively, the "Subject Securities") for
a consideration per share less than fifty-two cents ($.52) per share (the
"Trigger Price") (or, if a Pro Forma Adjusted Trigger Price shall be in effect
as provided below in this Paragraph 3, then less than such Pro Forma Adjusted
Trigger Price per share), then and in each such case the Holder of this Warrant,
upon the exercise hereof as provided in Paragraph 1 hereof, shall be entitled to
receive, in lieu of the shares of Common Stock theretofore receivable upon the
exercise of this Warrant, a number of shares of Common Stock determined by (a)
dividing the Trigger Price by a Pro Forma Adjusted Trigger Price per share to be
computed as provided below in this Paragraph 3, and (b) multiplying the
resulting quotient by the number of shares of Common Stock called for on the
face of this Warrant. A Pro Forma Adjusted 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 Adjusted 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 3:
3.1 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.
Page 115 of 149
3.2 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, if a Pro Forma Adjusted 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 Adjusted 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 Adjusted 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.
3.3 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 Adjusted 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 Adjusted 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 Adjusted 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
Page 116 of 149
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.
3.4 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 other than the Subject Securities, such
Convertible Securities shall be deemed, for the purposes of subparagraph 3.2.
above, to have been issued or sold for the total amount 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, provided that, upon the
expiration of such rights or options, if any thereof shall not have been
exercised, the Pro Forma Adjusted 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.
3.5 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 Warrant, 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 Warrant, then and in each such case the Pro
Forma Adjusted Trigger Price per share shall forthwith be adjusted,
substantially in the manner provided for above in this Paragraph 3, so as to
protect the Holder of this Warrant against the effect of such dilution.
3.6 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.
3.7 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
and other assets) then, for the purpose of this Paragraph 3, 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
Page 117 of 149
determine in good faith 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 3.7, it will,
not less than seven (7) days after any and each such determination, deliver to
the Holder of this Warrant 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.
3.8 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.
3.9 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.
3.10 Duration of Pro Forma Adjusted Trigger Price. Following each
computation or readjustment of a Pro Forma Adjusted Trigger Price as provided in
this Paragraph 3, the newly computed or adjusted Pro Forma Adjusted Trigger
Price shall remain in effect until a further computation or readjustment thereof
is required by this Paragraph 3.
4. 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 Warrant) 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
Page 118 of 149
(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 the Holder
of this Warrant, upon the exercise hereof as provided in Paragraph 1 hereof,
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 Warrant, the amount
of stock or other securities or property (including cash in the cases referred
to in clauses (b) and (c) above) which such Holder would hold on the date of
such exercise if, on the Issuance Date, he had been the holder of record of the
number of shares of Common Stock of the Company called for on the face of this
Warrant 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 3 and 5 hereof.
5. 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 Warrant)
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 the Holder of this Warrant, upon the exercise hereof as provided
in Paragraph 1 hereof, at any time after the consummation of such
reorganization, consolidation, merger or conveyance, shall be entitled to
receive the stock or other securities or property to which such Holder would
have been entitled upon such consummation if such Holder had exercised this
Warrant immediately prior thereto, all subject to further adjustments as
provided in Paragraphs 3 and 4 hereof; in each such case, the terms of this
Warrant shall be applicable to the shares of stock or other securities or
property receivable upon the exercise of this Warrant after such consummation.
6. 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 Warrant, 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 the rights of the
Holder hereof against dilution or other impairment. Without limiting the
generality of the foregoing, the Company will not increase the par value of any
shares of stock receivable upon the exercise of this Warrant 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
Warrant.
7. 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 Warrant, at the request of the
Holder of this Warrant 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 Warrant and
prepare a certificate setting forth such adjustment and showing in detail the
Page 119 of 149
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 Adjusted Trigger Price. The Company will forthwith mail a copy of such
certificate to the Holder of this Warrant.
8. 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 Warrant) 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 the
Holder of this Warrant 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 Warrant) 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.
9. RESERVATION OF STOCK, ETC., ISSUABLE ON EXERCISE OF WARRANTS. The
Company will at all times reserve and keep available, solely for issuance and
delivery upon the exercise of this Warrant and other similar Warrants, such
shares of Common Stock and other stock, securities and property as from time to
time shall be issuable upon the exercise of this Warrant and all other similar
Warrants at the time outstanding.
10. REPLACEMENT OF WARRANT. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant and (in case of loss theft or destruction) upon delivery of an
indemnity agreement in an amount reasonably satisfactory to it, or (in the case
of mutilation) upon surrender and cancellation thereof, the Company will issue,
in lieu thereof, a new Warrant of like tenor.
Page 120 of 149
11. REMEDIES. The Company stipulates that the remedies at law of the
Holder of this Warrant in the event of any default by the Company in its
performance of or compliance with any of the terms of this Warrant are not and
will not be adequate, and that the same may be specifically enforced.
12. NEGOTIABILITY, ETC. This Warrant is issued upon the following terms,
to all of which each taker or owner hereof consents and agrees:
(a) Title to this warrant may be transferred by endorsement (by
the Holder hereof executing the form of assignment at the end
hereof including guaranty of signature) and delivery in the
same manner as in the case of a negotiable instrument
transferable by endorsement and delivery.
(b) Any person in possession of this Warrant properly endorsed is
authorized to represent himself as absolute owner hereof and
is granted power to transfer absolute title hereto by
endorsement and delivery hereof to a bona fide purchaser
hereof for value; each prior taker or owner waives and
renounces all of his equities or rights in this Warrant in
favor of every such bona fide purchaser, and every such bona
fide purchaser shall acquire title hereto and to all rights
represented hereby.
(c) Until this Warrant is transferred on the books of the Company,
the Company may treat the registered Holder of this Warrant as
the absolute owner hereof for all purposes without being
affected by any notice to the contrary.
13. SUBDIVISION OF RIGHTS. This Warrant (as well as any new warrants
issued pursuant to the provisions of this paragraph) is exchangeable, upon the
surrender hereof by the Holder hereof, at the principal office of the Company
for any number of new warrants of like tenor and date representing in the
aggregate the right to subscribe for and purchase the number of shares of Common
Stock of the Company which may be subscribed for and purchased hereunder.
14. REGISTRATION RIGHTS.
a. Registration. On or prior to October 27, 1997, the Company will
file a registration statement ("Registration Statement") with the Securities and
Exchange Commission ("SEC") covering (x) the Warrants, and (y) the shares of
Common Stock issuable upon exercise of the Warrants (and covering such other
securities as the Company shall determine in its sole discretion) (collectively,
"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 until the
earlier of (i) seven years from the date it is declared effective by the SEC, or
(ii) the sale of all of the Registrable Securities.
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
Page 121 of 149
removal of such order. Following the effective date of the Registration
Statement, the Company shall, upon the request of the Holder, forthwith
supply such reasonable number of copies of the Registration Statement,
preliminary prospectus and prospectus meeting the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and other
documents necessary or incidental to a public offering of the Registrable
Securities, as shall be reasonably requested by the Holder to permit the
Holder to make a public distribution of its, his or her Registrable
Securities; provided, however, that by accepting this Warrant, the Holder
agrees, if requested by the managing underwriter(s) in connection with an
underwritten public offering of the Company's equity securities, to enter
into a customary agreement with such managing underwriter(s) not to offer
for sale or sell its, his or her Registrable Securities for up to 180 days
after such offering. The Company will use its reasonable efforts to
qualify the Registrable Securities for sale in such states as the Holder
of Registrable Securities 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 the Holder's Registrable Securities are expressly conditioned on the
Holder's furnishing to the Company such appropriate information concerning
the Holder, the Holder's Registrable Securities and the terms of the
Holder's 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 14, 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 counsel for the
Holder, if any, in each case arising in connection with registration of
the Registrable Securities shall be payable by the Holder.
(iii) In connection with the registration of the Registrable
Securities pursuant to this Paragraph 14, the Company shall indemnify and
hold harmless the Holder, its affiliates, officers, directors, partners,
employees, agents and representatives, each person, if any, who controls
the Holder within the meaning of the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), any person deemed
to be an underwriter of the Registrable Securities 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
Page 122 of 149
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 the Holder.
(iv) The Holder 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 or on behalf of the Holder 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 party receives periodic
payments for legal or other expenses during the course of an investigation
or defense, and such party subsequently received payments for such
expenses from any other parties to the proceeding, such payments shall be
used by the indemnified party 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
party 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 party 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 party 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 party, and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party for any legal or other expense,
other than reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The indemnified
party 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 party, when and as incurred, unless (A) the
employment of counsel by such indemnified party has been
Page 123 of 149
authorized by the indemnifying party, (B) the indemnified party 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 party shall have
reasonably concluded (based on advice of counsel) that there may be a
conflict of interest between the indemnifying party and the indemnified
party 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 party), 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, which shall not be unreasonably
withheld.
(vi) If the indemnification provided for in this Paragraph 14
is unavailable to any 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 herein, any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(vii) The Company and the Holder 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 the contribution obligation of the Holder be
greater in amount than the excess of (A) the dollar amount of proceeds
received by the Holder upon the sale of the securities giving rise to such
contribution obligation over (B) the dollar amount of any damages that the
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.
(viii) Neither the filing of the Registration Statement by the
Company pursuant to this Agreement nor the making of any request for
prospectuses by the Holder shall impose upon the Holder any obligation to
sell his, her or its Registrable Securities.
Page 124 of 149
(ix) The Holder, 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,
shall promptly discontinue the sale of his, her or its Registrable
Securities until the Holder receives a copy of a supplemented or amended
prospectus from the Company, which the Company shall provide as soon as
practicable after such notice.
15. MAILING OF NOTICES, ETC. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and shall be
deemed to have been duly given when delivered by hand, when delivered by
courier, three days after being deposited in the mail (registered or certified
mail, postage prepaid, return receipt requested), or when received by facsimile
transmission upon receipt of a confirmed transmission report, as follows:
If to the Company: 00 Xxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Chief Executive Officer
and if to the Holder of this Warrant to the address furnished to the
Company in writing by the last Holder of this Warrant who shall have
furnished an address to the Company in writing. Either the Company or the
Holder of this Warrant, by notice given to the other parties hereto in
accordance with this Section 15, may change the address or facsimile
transmission number to which such notice or other communications are to be
sent to such party.
16. HEADINGS, ETC. The headings in this Warrant are for purposes of
reference only, and shall not limit or otherwise affect the meaning hereof.
17. CHANGE, WAIVER, ETC. Neither this Warrant nor any term hereof may be
changed, waived, discharged or terminated orally but only by an instrument in
writing signed by the party against which enforcement of the change, waiver,
discharge or termination is sought.
18. GOVERNING LAW. This Warrant shall be construed and enforced in
accordance with the laws of the State of New York.
LOGIMETRICS, INC.
By:
----------------------------------
Dated: July 29, 1997
Attest:
--------------------------------
Page 125 of 149
[To be signed only upon exercise of Warrant]
To LOGIMETRICS, INC.:
The undersigned, the Holder of the within Series I Warrant, hereby
irrevocably elects to exercise the purchase right represented by such Warrant
for, and to purchase thereunder, _______ shares of Common Stock of LOGIMETRICS,
INC. and herewith makes payment of $________ therefor, and requests that the
certificates for such shares be issued in the name of, and be delivered to,
________, whose address is _______________.
Dated:
---------------------------------
--------------------------------------------------------------------------------
(Signature must conform in all respects to
name of Holder as specified on the face of the
Warrant)
Address:
--------------------------------------------------------------------------------
Page 126 of 149
[To be signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ________________ the right represented by the within Series I Warrant to
purchase the _______ shares of the Common Stock of LOGIMETRICS, INC. to which
the within Series I Warrant relates, and appoints _____________ attorney to
transfer said right on the books of LOGIMETRICS, INC. with full power of
substitution in the premises.
Dated:
---------------------------------
--------------------------------------------------------------------------------
(Signature must conform in all respects to
name of Holder as specified on the face of the
Warrant)
Address:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
In the presence of
---------------------------------
Page 127 of 149
