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 UNIT PURCHASE AGREEMENT DATED AS
OF MARCH 7, 1996 BY AND BETWEEN THE COMPANY AND CERBERUS
PARTNERS, L.P.
LOGIMETRICS, INC.
Common Stock Purchase Warrant
Series C
LOGIMETRICS, INC. (the "Company"), a Delaware corporation,
hereby certifies that, for value received, Cerberus Partners,
L.P., or assigns, is entitled, subject to the terms set forth
below, to purchase from the Company Eighty Four Thousand Seven
Hundred Forty Six (84,746) fully paid and non-assessable shares
of Common Stock of the Company, at a purchase price, subject to
the provisions of Paragraph 3 hereof, of one cent ($.01) per
share (the "Purchase Price") at any time prior to the seventh
anniversary of the original date of issuance hereof. 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. This Warrant is herein called the "Warrant". This
Warrant is one of a series of warrants to purchase 2,542,080
shares of Common Stock ("Series C Warrants").
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 Plainview, New York, 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) 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 or other securities or property to which such Holder shall
be entitled upon such exercise, plus, in lieu of any fractional
share to which such Holder would otherwise be entitled, cash
equal to such fraction multiplied by the then current market
value of one full share.
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
than any Common Stock issuable upon (i) conversion of the
Company's Amended and Restated 12% Convertible Subordinated
Debentures dated as of July 14, 1995 ("1995 Debentures"), (ii)
exercise of those certain Amended and Restated Series A Warrants
dated March 7, 1996 to purchase 600,000 shares of Common Stock
("Series A Warrants"), (iii) exercise by each of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Deutsch (the "Principals") of their right
to purchase 100,000 shares of Common Stock at a price of $.10 per
share ("Principals' Options"), (iv) exercise of those certain
Amended and Restated Series B Warrants dated March 7, 1996 to
purchase 1,500,000 shares of Common Stock ("Series B Warrants"),
(v) conversion of the Company's 12% Convertible Senior
Subordinated Debentures dated March 7, 1996 ("Senior Subordinated
Debentures"), (vi) exercise of those certain Series D Warrants
dated March 7, 1996 to purchase an aggregate of 2,830,200 shares
of Common Stock ("Series D Warrants"), (vii) exercise of those
certain Series E Warrants dated March 7, 1996 to purchase
1,000,000 shares of the Company's Common Stock ("Series E
Warrants" and together with the Series A, B, C and D Warrants,
"Warrants"), (viii) exercise of those certain Stock Options,
dated March 7, 1996 to purchase 1,000,000 shares of Common Stock
issued to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇ Options") and (ix) conversion
of the Company's 30 shares of Series A 12% Cumulative Convertible
Redeemable Preferred Stock ("Preferred Stock" and together with
the 1995 Debentures, the Senior Subordinated Debentures, the
Warrants, the ▇▇▇▇▇ Options, the Principals' Options and any
shares of Common Stock issuable upon conversion or exercise
thereof, the "Subject Securities")), for a consideration per
share less than thirty cents ($.30) per share (the "Trigger
Price") (or, if a Pro Forma 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.
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 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, 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, if any cash constitutes a part of the assets of a
corporation or business substantially all of the assets of which
are being received a such consideration) then, for the purpose of
this Paragraph 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 determine what part of
the consideration so received is to be deemed to be the
consideration for the issue or sale of such Common Stock or
Convertible Securities or such rights or options.
The Company covenants and agrees that, should any
determination of fair value of consideration or of allocation of
consideration be made by the Board of Directors of the Company,
pursuant to this subparagraph 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
(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 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 each 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 ar 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 insurance 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 the 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.
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. Within 90 days after the date
hereof, the Company will file a registration statement
("Registration Statement") with the Securities and Exchange
Commission ("SEC") covering the Warrants and shares of Common
Stock issuable upon conversion of the 1995 Debentures, the Senior
Subordinated Debentures and the Preferred Stock, and upon
exercise of the Warrants and the ▇▇▇▇▇ Options as well as Common
Stock owned by the Principals and issuable upon exercise of the
Principals' Options (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 for a
period of seven years from the date it is declared effective by
the SEC.
b. Additional Terms. Except as otherwise expressly
stated herein, the following provisions shall be applicable to
the Registration Statement:
(i) The Company will use its best efforts to cause
the Registration Statement to become effective as promptly
as possible, and if any stop order shall be issued by the
SEC in connection therewith to use its reasonable efforts to
obtain the removal of such order. Following the effective
date of the Registration Statement, the Company shall, upon
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
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. 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 of 1933, as
amended (the "Securities Act"), or the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and any person
claiming by or through any of them (collectively, the
"Indemnified Persons") from and against all losses, claims,
damages, expenses or liabilities (or actions in respect
thereof) arising out of or are based upon any untrue
statement of any material fact contained in the Registration
Statement or alleged untrue statement, under which such
securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto, or arise
out of or are based upon the omission to state therein a
material fact required to be stated therein or necessary to
make the statements made therein, in light of the
circumstances under which they are made, not misleading, or
any violation by the Company of the Securities Act, the
Exchange Act or state securities or blue sky laws applicable
to the Company and relating to action or inaction required
of the Company in connection with such registration or
qualification under such state securities or blue sky laws;
and will reimburse the Indemnified Persons for any legal or
any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the
Company will not be liable in any such case to any
Indemnified Person to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue
statement or omission made in the Registration Statement,
said preliminary prospectus or said final prospectus or said
amendment or supplement or any document incident thereto in
reliance upon and in conformity with written information
furnished to the Company by or on behalf of 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
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.
(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.
(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 and other
communications from the Company to the Holder of this Warrant
shall be mailed by first-class certified mail, postage prepaid,
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.
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.
17. GOVERNING LAW. This Series C Warrant shall be
construed and enforced in accordance with the laws of the State
of New York.
LOGIMETRICS, INC.
By:
Dated: ▇▇▇▇▇ ▇, ▇▇▇▇
▇▇▇▇▇▇:
[To be signed only upon exercise of Warrant]
To LOGIMETRICS, INC.:
The undersigned, the Holder of the within Series C 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:
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(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
Address:
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[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 C Warrant to purchase the
shares of the Common Stock of LOGIMETRICS, INC. to which the
within Series C Warrant relates, and appoints
attorney to transfer said right on the
books of LOGIMETRICS, INC. with full power of substitution in the
premises.
Dated:
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(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
Address:
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In the presence of
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