UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
March 14, 2011 (March 10, 2011)
Date of Report (Date of earliest event reported)
(Exact name of registrant as specified in its charter)
0-17187
Commission File Number
California |
94-2893789 |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
(Address of principal executive offices)
(Zip Code)
(408) 542-5400
(Registrants telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement
On March 10, 2011, LOGIC Devices Incorporated (the Company) entered into an Investment Agreement (the Investment Agreement) with Dutchess Opportunity Fund, II, LP (Dutchess), for the sale of up to $5.0 million of shares of the Companys common stock over a three-year commitment period. Under the terms of the Investment Agreement, the Company may from time to time, in its discretion, sell newly-issued shares of its common stock to Dutchess at 95% of a recent average market price at the time of such issuance. In connection with the Investment Agreement, the Company paid to Dutchess a document preparation fee in the form of a $15,000 cash payment.
The amount of each advance under the Investment Agreement is generally limited to $100,000 or 200% of the average daily volume traded in the United States of the Companys common stock for the three (3) consecutive trading days prior to the date the Company requests the advance, multiplied by the average of the three (3) daily closing prices immediately preceding the date of the advance notice. The Company is not obligated to utilize any of the $5.0 million available under the Investment Agreement and there are no minimum commitments or minimum use penalties. The total amount of funds that ultimately can be raised under the Investment Agreement over the three-year term will depend on the market price for the Companys common stock and the number of shares actually sold.
The Investment Agreement does not impose any restrictions on the Companys operating activities. During the term of the Investment Agreement, Dutchess is prohibited from engaging in any short selling or hedging transactions related to the Companys common stock.
Also on March 10, 2011, the Company and Dutchess entered into a Registration Rights Agreement (the Registration Rights Agreement), pursuant to which the Company agreed to register the resale by Dutchess of the shares of common stock issued under the Investment Agreement. In accordance with the terms of the Registration Rights Agreement, the Company must file a Registration Statement on Form S-1 with the Securities and Exchange Commission within 21 days of March 10, 2011.
A copy of the Investment Agreement is attached hereto as Exhibit 4.1 and incorporated by reference herein. A copy of the Registration Rights Agreement is attached hereto as Exhibit 4.2 and incorporated by reference herin.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
4.1 |
Investment Agreement between LOGIC Devices Incorporated and Dutchess Opportunity Fund, II, LP, dated March 10, 2011
|
4.2 |
Registration Rights Agreement between LOGIC Devices Incorporated and Dutchess Opportunity Fund, II, LP dated March 10, 2011 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
|
LOGIC Devices Incorporated (Registrant)
|
|
|
Date: March 14, 2011 |
By: /s/ Kimiko Milheim Kimiko Milheim Chief Financial Officer and Corporate Secretary
|
Exhibit 4.1
INVESTMENT AGREEMENT
INVESTMENT AGREEMENT (this AGREEMENT), dated as of March 10, 2011 by and between LOGIC Devices, Incorporated, a California corporation (the Company), and Dutchess Opportunity Fund, II, LP, a Delaware Limited Partnership (the Investor).
WHEREAS, the parties desire that, upon the terms and subject to the conditions contained herein, the Investor shall invest up to five million dollars ($5,000,000) to purchase the Company's Common Stock, without par value per share (the Common Stock);
WHEREAS, such investments will be made in reliance upon the provisions of Section 4(2) under the Securities Act of 1933, as amended (the 1933 Act), Rule 506 of Regulation D, and the rules and regulations promulgated thereunder, and/or upon such other exemption from the registration requirements of the 1933 Act as may be available with respect to any or all of the investments in Common Stock to be made hereunder; and
WHEREAS, contemporaneously with the execution and delivery of this Agreement, the parties hereto are executing and delivering a Registration Rights Agreement substantially in the form attached hereto (the Registration Rights Agreement) pursuant to which the Company has agreed to provide certain registration rights under the 1933 Act, and the rules and regulations promulgated thereunder, and applicable state securities laws.
NOW THEREFORE, in consideration of the foregoing recitals, which shall be considered an integral part of this Agreement, the covenants and agreements set forth hereafter, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Investor hereby agree as follows:
As used in this Agreement, the following terms shall have the following meanings specified or indicated below, and such meanings shall be equally applicable to the singular and plural forms of such defined terms.
1933 Act shall have the meaning set forth in the recitals of this Agreement.
1934 Act shall mean the Securities Exchange Act of 1934, as it may be amended.
AAA shall have the meaning specified in Section 12.
Affiliate shall have the meaning specified in Section 5(H).
Agreement shall mean this Investment Agreement.
Articles of Incorporation shall have the meaning specified in Section 4(C).
By-laws shall have the meaning specified in Section 4(C).
Closing shall have the meaning specified in Section 2(F).
Closing Date shall have the meaning specified in Section 2(F).
Common Stock shall have the meaning set forth in the recitals of this Agreement.
Company shall have the meaning set forth in the preamble of this Agreement.
Control or Controls shall have the meaning specified in Section 5(H).
DTC shall have the meaning specified in Section 2(F).
DWAC shall have the meaning specified in Section 2(F).
Effective Date shall mean the date the SEC declares effective under the 1933 Act the Registration Statement covering the Securities.
Equity Line Transaction Documents shall mean this Agreement and the Registration Rights Agreement.
FAST shall have the meaning specified in Section 2(F).
Indemnities shall have the meaning specified in Section 11.
Indemnified Liabilities shall have the meaning specified in Section 11.
Indemnitor shall have the meaning specified in Section 11.
Investor shall have the meaning indicated in the preamble of this Agreement.
Material Adverse Effect shall have the meaning specified in Section 4(A).
Maximum Common Stock Issuance shall have the meaning specified in Section 2(G).
Minimum Acceptable Price with respect to any Put Notice Date shall be the price defined by the Company in the applicable Put Notice.
Open Market Adjustment Amount shall have the meaning specified in Section 2(H).
Open Market Share Purchase shall have the meaning specified in Section 2(H).
Open Period shall mean the period beginning on and including the Trading Day immediately following the Effective Date and ending on the earlier to occur of (i) the date which is thirty-six (36) months from the Effective Date; or (ii) termination of the Agreement in accordance with Section 9, below.
Pricing Period shall mean the five (5) consecutive Trading Days beginning on the Put Notice Date and ending on and including the date that is four (4) Trading Days after such Put Notice Date.
Principal Market shall mean the Nasdaq Capital Market, the NYSE Amex, the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market, the OTCQX or the OTC Bulletin Board, whichever is the principal market on which the Common Stock is listed.
Prospectus shall mean the prospectus, preliminary prospectus and supplemental prospectus used in connection with the Registration Statement.
Purchase Amount shall mean the total amount being paid by the Investor on a particular Closing Date to purchase the Securities.
Purchase Price shall mean ninety-five percent (95%) of the lowest daily VWAP (as defined herein) of the Common Stock during the Pricing Period.
Put shall have the meaning set forth in Section 2(B) hereof.
Put Amount shall have the meaning set forth in Section 2(B) hereof.
Put Notice shall mean a written notice in the form attached hereto as Exhibit C, sent to the Investor by the Company stating the Put Amount in U.S. dollars the Company intends to sell to the Investor pursuant to the terms of the Agreement and stating the current number of Shares issued and outstanding on such date.
Put Notice Date shall mean the Trading Day, as set forth below, immediately following the day on which the Investor receives a Put Notice, however a Put Notice shall be deemed delivered on (a) the Trading Day it is received by facsimile or email by the Investor if such notice is received prior to 9:00 am Eastern Time, or (b) the immediately succeeding Trading Day if it is received by facsimile or otherwise after 9:00 am Eastern Time on a Trading Day. No Put Notice may be deemed delivered on a day that is not a Trading Day.
Put Restriction shall mean the days during the Pricing Period. During this time, the Company shall not be entitled to deliver another Put Notice.
Put Shares Due shall have the meaning specified in Section 2(H).
Registration Rights Agreement shall have the meaning set forth in the recitals of this Agreement.
Registration Statement means the registration statement of the Company filed under the 1933 Act covering the resale by the Investor of the Common Stock issuable hereunder.
Related Party shall have the meaning specified in Section 5(H).
Resolutions shall have the meaning specified in Section 8(E).
SEC shall mean the U.S. Securities & Exchange Commission.
SEC Documents shall have the meaning specified in Section 4(G).
Securities shall mean the shares of Common Stock issued pursuant to the terms of the Agreement.
Shares shall mean the shares of the Companys Common Stock.
Subsequent Purchasers shall have the meaning specified in Section 2(I).
Subsidiaries shall have the meaning specified in Section 4(A).
Trading Day shall mean any day on which the Principal Market for the Common Stock is open for trading, from the hours of 9:30 am until 4:00 pm Boston Time.
VWAP shall mean the volume weighted average price.
If any of the events described in clauses (1) through (5) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Common Stock subject to the applicable Put Notice.
The Company understands that a delay in the issuance of Securities beyond the Closing Date could result in economic damage to the Investor. After the Effective Date, as compensation to the Investor for such loss, the Company agrees to make payments to the Investor for late issuance of Securities (delivery of Securities after the applicable Closing Date) in accordance with the following schedule (where No. of Days Late is defined as the number of trading days beyond the Closing Date, with the Amounts being cumulative.):
LATE PAYMENT FOR EACH NO. OF DAYS LATE |
|
1 |
$100 |
2 |
$200 |
3 |
$300 |
4 |
$400 |
5 |
$500 |
6 |
$600 |
7 |
$700 |
8 |
$800 |
9 |
$900 |
10 |
$1000 |
Over 10 |
$1,000 + $200 for each Business Day late beyond 10 days |
The Company shall make any payments incurred under this Section in immediately available funds upon demand by the Investor. Nothing herein shall limit the Investor's right to pursue actual damages for the Company's failure to issue and deliver the Securities to the Investor, except that such late payments shall offset any such actual damages incurred by the Investor, and any Open Market Adjustment Amount, as set forth below.
For clarity, the Company has registered stock option plans currently in place with its employees and directors. On February 7, 2008 at its Annual Meeting, the Company adopted the plan entitled Amended and Restated LOGIC Devices Incorporated 1998 Director Stock Incentive Plan, as amended and restated on November 15, 2007. The plan is included as Exhibit 10.2 to the Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2008 and as filed with the SEC on May 6, 2008. On that same date, February 7, 2008, the Company adopted the plan entitled LOGIC Devices Incorporated 2007 Employee Stock Incentive Plan. The plan is included as Exhibit 10.3 to the Companys Quarterly Report on Form 10-Q for the quarter ended March 31, 2008 and as filed with the SEC on May 6, 2008.
The Company has furnished to the Investor, or the Investor has had access through the SECs EDGAR website to, true and correct copies of the Company's Articles of Incorporation, as amended and in effect on the date hereof (the Articles of Incorporation), and the Company's By-laws, as in effect on the date hereof (the By-laws), and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof in respect thereto.
(F) SEC DOCUMENTS; FINANCIAL STATEMENTS. As of the date hereof, the Company has filed all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the "SEC Documents"). The Company has delivered to the Investor or its representatives, or they have had access through the SECs EDGAR website to, true and complete copies of the SEC Documents. As of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles, and audited by a firm that is a member a member of the Public Companies Accounting Oversight Board ("PCAOB") consistently applied, during the periods involved (except (I) as may be otherwise indicated in such financial statements or the notes thereto, or (II) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). No other written information provided by or on behalf of the Company to the Investor which is not included in the SEC Documents, including, without limitation, information referred to in Section 4(D) of this Agreement, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstance under which they are or were made, not misleading. Neither the Company nor any of its Subsidiaries or any of their officers, directors, employees or agents have provided the Investor with any material, nonpublic information which was not publicly disclosed prior to the date hereof and any material, nonpublic information provided to the Investor by the Company or its Subsidiaries or any of their officers, directors, employees or agents prior to any Closing Date shall be publicly disclosed by the Company prior to such Closing Date.
(G) ABSENCE OF CERTAIN CHANGES. Except as otherwise set forth in the SEC Documents, the Company does not intend to change the business operations of the Company in any material way. The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any bankruptcy law nor does the Company or its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings.
(H) ABSENCE OF LITIGATION AND/OR REGULATORY PROCEEDINGS. Except as set forth in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the executive officers of Company or any of its Subsidiaries, threatened against or affecting the Company, the Common Stock or any of the Company's Subsidiaries or any of the Company's or the Company's Subsidiaries' officers or directors in their capacities as such, in which an adverse decision could have a Material Adverse Effect.
(I) ACKNOWLEDGMENT REGARDING INVESTOR'S PURCHASE OF SHARES. The Company acknowledges and agrees that the Investor is acting solely in the capacity of an arm's length purchaser with respect to the Equity Line Transaction Documents and the transactions contemplated hereby and thereby. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Equity Line Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the Investor or any of its respective representatives or agents in connection with the Equity Line Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to the Investor's purchase of the Securities, and is not being relied on by the Company. The Company further represents to the Investor that the Company's decision to enter into the Equity Line Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.
(J) NO UNDISCLOSED EVENTS, LIABILITIES, DEVELOPMENTS OR CIRCUMSTANCES. Except as set forth in the SEC Documents, as of the date hereof, no event, liability, development or circumstance has occurred or exists, or to the Company's knowledge is contemplated to occur, with respect to the Company or its Subsidiaries or their respective business, properties, assets, prospects, operations or financial condition, that would be required to be disclosed by the Company under applicable securities laws on a registration statement filed with the SEC relating to an issuance and sale by the Company of its Common Stock and which has not been publicly announced.
(K) EMPLOYEE RELATIONS. Neither the Company nor any of its Subsidiaries is involved in any union labor dispute nor, to the knowledge of the Company or any of its Subsidiaries, is any such dispute threatened. Neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that relations with their employees are good. No executive officer (as defined in Rule 501(f) of the 1933 Act) has notified the Company that such officer intends to leave the Company's employ or otherwise terminate such officer's employment with the Company.
(L) INTELLECTUAL PROPERTY RIGHTS. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. Except as set forth in the SEC Documents, none of the Company's trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets or other intellectual property rights necessary to conduct its business as now or as proposed to be conducted have expired or terminated, or are expected to expire or terminate within two (2) years from the date of this Agreement. The Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its Subsidiaries of trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, trade secret or other similar rights of others, or of any such development of similar or identical trade secrets or technical information by others and, except as set forth in the SEC Documents, there is no claim, action or proceeding being made or brought against, or to the Company's knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other infringement; and the Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing. The Company and its Subsidiaries have taken commercially reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties.
(M) ENVIRONMENTAL LAWS. The Company and its Subsidiaries (I) are, to the knowledge of the Company and its Subsidiaries, in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"); (II) have, to the knowledge of the Company, received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (III) are in compliance, to the knowledge of the Company, with all terms and conditions of any such permit, license or approval where, in each of the three (3) foregoing cases, the failure to so comply would have, individually or in the aggregate, a Material Adverse Effect.
(N) TITLE. The Company and its Subsidiaries have good and marketable title to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as are described in the SEC Documents or such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company or any of its Subsidiaries. Any real property and facilities held under lease by the Company or any of its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.
(O) INSURANCE. Each of the Company's Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the Company reasonably believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged. Neither the Company nor any of its Subsidiaries has been refused any insurance coverage sought or applied for and neither the Company nor its Subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(P) REGULATORY PERMITS. The Company and its Subsidiaries have in full force and effect all certificates, approvals, authorizations and permits from the appropriate federal, state, local or foreign regulatory authorities and comparable foreign regulatory agencies, necessary to own, lease or operate their respective properties and assets and conduct their respective businesses, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, approval, authorization or permit, except for such certificates, approvals, authorizations or permits which if not obtained, or such revocations or modifications which, would not have a Material Adverse Effect.
(Q) INTERNAL ACCOUNTING CONTROLS. The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (I) transactions are executed in accordance with management's general or specific authorizations; (II) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles by a firm with membership to the PCAOB and to maintain asset accountability; (III) reasonable controls to safeguard assets are in place; and (IV) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(R) NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Company nor any of its Subsidiaries is subject to any charter, corporate or other legal restriction, or any judgment, decree or order which in the judgment of the Company's officers has or is expected in the future to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any contract or agreement which in the judgment of the Company's officers has or is expected to have a Material Adverse Effect.
(S) TAX STATUS. The Company and each of its Subsidiaries has made or filed all United States federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know of no basis for any such claim.
(T) CERTAIN TRANSACTIONS. Except as set forth in the SEC Documents filed at least ten (10) days prior to the date hereof and except for arm's length transactions pursuant to which the Company makes payments in the ordinary course of business upon terms no less favorable than the Company could obtain from disinterested third parties and other than the grant of stock options disclosed in the SEC Documents or stock options granted in the future as contemplated by current compensation agreements or plans disclosed in the SEC Documents, none of the officers, directors, or employees of the Company is presently a party to any transaction with the Company or any of its Subsidiaries (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner. However, for the purposes of clarity, the Company has entered into private placements of unregistered shares, totaling 64,935 shares, to its directors since its last periodic report filed with the SEC to the date of this document.
(U) DILUTIVE EFFECT. The Company understands and acknowledges that the number of shares of Common Stock issuable upon purchases pursuant to this Agreement will increase in certain circumstances including, but not necessarily limited to, the circumstance wherein the trading price of the Common Stock declines during the period between the Effective Date and the end of the Open Period. The Company's executive officers and directors have studied and fully understand the nature of the transactions contemplated by this Agreement and recognize that they have a potential dilutive effect on the shareholders of the Company. The Board of Directors of the Company has concluded, in its good faith business judgment, and with full understanding of the implications, that such issuance is in the best interests of the Company. The Company specifically acknowledges that, subject to such limitations as are expressly set forth in the Equity Line Transaction Documents, its obligation to issue shares of Common Stock upon purchases pursuant to this Agreement is absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other shareholders of the Company.
(V) LOCK-UP. The Company shall cause its officers and directors to refrain from selling Common Stock during each Pricing Period.
(W) NO GENERAL SOLICITATION. Neither the Company, nor any of its affiliates, nor any person acting on its behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Common Stock to be offered as set forth in this Agreement.
(X) NO BROKERS, FINDERS OR FINANCIAL ADVISORY FEES OR COMMISSIONS. No brokers, finders or financial advisory fees or commissions will be payable by the Company, its agents or Subsidiaries, with respect to the transactions contemplated by this Agreement, except as otherwise disclosed in this Agreement.
If to the Company:
LOGIC Devices, Incorporated
1375 Geneva Drive
Sunnyvale, California 94089
Telephone: (408) 542-5400
Facsimile: (408) 542-0080
If to the Investor:
Dutchess Opportunity Fund, II, LP
50 Commonwealth Avenue, Suite 2
Boston, MA 02116
Telephone: 617-301-4700
Facsimile: 617-249-0947
Each party shall provide five (5) days prior written
notice to the other party of any change in address or facsimile number.
[Signature Page Follows]
SIGNATURE PAGE OF INVESTMENT AGREEMENT
Your signature on this Signature Page evidences your agreement to be bound by the terms and conditions of the Investment Agreement and the Registration Rights Agreement as of the date first written above.
The undersigned signatory hereby certifies that he has read and understands the Investment Agreement, and the representations made by the undersigned in this Investment Agreement are true and accurate, and agrees to be bound by its terms.
DUTCHESS OPPORTUNITY FUND, II, LP
By:
Douglas H. Leighton
Managing Member of:
Dutchess Capital Management, II, LLC General Partner to:
Dutchess Opportunity Fund, II, LP
LOGIC DEVICES, INCORPORATED
By:
William J. Volz
President and Chief Executive Officer
By:
Kimiko Milheim
Chief Financial Officer
LIST OF EXHIBITS
EXHIBIT A Registration Rights Agreement
EXHIBIT B Opinion of Company's Counsel
EXHIBIT C Put Notice
EXHIBIT D Put Settlement Sheet
EXHIBIT A
REGISTRATION RIGHTS AGREEMENT
(Attached)
EXHIBIT B
OPINION OF COMPANYS COUNSEL
(Attached)
EXHIBIT C
FORM OF PUT NOTICE
RE: Put Notice Number
Dear Mr. Leighton:
This is to inform you that as of today, LOGIC Devices, Incorporated, a California corporation (the "Company"), hereby elects to exercise its right pursuant to the Investment Agreement entered into with Dutchess Opportunity Fund II, LP (Dutchess) to require Dutchess to purchase shares of its common stock. The Company hereby certifies that:
The amount of this put is up to $ .
The Pricing Period runs from until .
The Suspension Price is $ .
The current number of shares issued and outstanding as of the Company are:
The number of shares currently available for resale pursuant to the Registration Statement on Form S-1 for the Equity Line are: .
Regards,
LOGIC Devices, Incorporated
EXHIBIT D
FORM OF PUT SETTLEMENT SHEET
Date:
RE: LOGIC Devices, Incorporated
Dear :
Pursuant to the Put given by LOGIC Devices, Inc. to Dutchess Opportunity Fund, II, LP on 201_, we are now submitting the amount of common shares for you to issue to Dutchess.
Please deliver __________ shares without restrictive legend via book entry to Dutchess Opportunity Fund, II, LP immediately and send via DWAC to the following account:
XXXXXX
Once these shares are received by us, we will have the funds wired to the Company.
Regards,
Douglas H. Leighton
DATE |
PRICE |
Date of Day 1 |
VWAP of Day 1 |
Date of Day 2 |
VWAP of Day 2 |
Date of Day 3 |
VWAP of Day 3 |
Date of Day 4 |
VWAP of Day 4 |
Date of Day 5 |
VWAP of Day 5 |
LOWEST VWAP IN PRICING PERIOD
PUT AMOUNT
PURCHASE PRICE (NINETY-FIVE PERCENT (95%))
AMOUNT OF SHARES DUE
The undersigned has completed this Put as of this ___th day of _________, 200_.
LOGIC DEVICES, INCORPORATED
By:
Name:
Title:
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the Agreement), dated as of March 10, 2011, by and between LOGIC Devices, Incorporated, Inc., a corporation organized under the laws of California, USA (the Company), and Dutchess Opportunity Fund, II, LP, a Delaware Limited Partnership (the Investor).
Whereas, in connection with the Investment Agreement by and between the Company and the Investor of this date (the Investment Agreement), the Company has agreed to issue and sell to the Investor up to 1,740,000 shares of the Companys Common Stock, without par value per share (the Common Stock), to be purchased pursuant to the terms and subject to the conditions set forth in the Investment Agreement; and
Whereas, to induce the Investor to execute and deliver the Investment Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the 1933 Act), and applicable state securities laws, with respect to the shares of Common Stock issuable pursuant to the Investment Agreement.
Now therefore, in consideration of the foregoing promises and the mutual covenants contained hereinafter and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
As used in this Agreement, the following terms shall have the following meanings:
Execution Date means the date of this Agreement set forth above.
Person means a corporation, a limited liability company, an association, a partnership, an organization, a business, an individual, a governmental or political subdivision thereof or a governmental agency.
Principal Market shall mean Nasdaq Capital Market, the NYSE Amex, the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market or the OTC Bulletin Board, whichever is the principal market on which the Common Stock of the Company is listed.
Register, Registered, and Registration refer to the Registration effected by preparing and filing one (1) or more Registration Statements in compliance with the 1933 Act and pursuant to Rule 415 under the 1933 Act or any successor rule providing for offering securities on a continuous basis (Rule 415), and the declaration or ordering of effectiveness of such Registration Statement(s) by the United States Securities and Exchange Commission (the SEC).
Registrable Securities means (i) the shares of Common Stock issued or issuable pursuant to the Investment Agreement, and (ii) any shares of capital stock issued or issuable with respect to such shares of Common Stock, if any, as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, which have not been (x) included in the Registration Statement that has been declared effective by the SEC, or (y) sold under circumstances meeting all of the applicable conditions of Rule 144 (or any similar provision then in force) under the 1933 Act.
Registration Statement means the registration statement or statements of the Company filed under the 1933 Act covering the Registrable Securities.
All capitalized terms used in this Agreement and not otherwise defined herein shall have the same meaning ascribed to them as in the Investment Agreement.
At such time as the Company is obligated to prepare and file the Registration Statement with the SEC pursuant to Section 2(a), the Company shall have the following obligations with respect to the Registration Statement:
All reasonable expenses, other than underwriting discounts and commissions and other than as set forth in the Investment Agreement, incurred in connection with registrations including comments, filings or qualifications pursuant to Section 2 and Section 3, including, without limitation, all registration, listing and qualifications fees, printing and accounting fees, and fees and disbursements of counsel for the Company shall be paid by the Company.
In the event any Registrable Securities are included in the Registration Statement under this Agreement:
To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however, that: (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Section 6; (ii) no seller of Registrable Securities guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any seller of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds received by such seller from the sale of such Registrable Securities.
With a view to making available to the Investor the benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or regulation of the SEC that may at any time permit the Investor to sell securities of the Company to the public without registration (Rule 144), provided that the Investor holds any Registrable Securities which are eligible for resale under Rule 144 and such information is necessary in order for the Investor to sell such Securities pursuant to Rule 144, the Company agrees to:
This Agreement and the rights, agreements or obligations hereunder may not be assigned, by operation of law, merger or otherwise, and without the prior written consent of the other party hereto, and any purported assignment by a party without prior written consent of the other party will be null and void and not binding on such other party. Subject to the preceding sentence, all of the terms, agreements, covenants, representations, warranties and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the parties and their respective successors and assigns.
The provisions of this Agreement may be amended only with the written consent of the Company and the Investor.
If to the Company:
LOGIC Devices, Incorporated
1375 Geneva Drive
Sunnyvale, California 94089
Telephone: (408) 542-5400
Facsimile: (408) 542-0080
If to the Investor:
Dutchess Opportunity Fund, II, LP
50 Commonwealth Ave, Suite 2
Boston, MA 02116
Telephone: (617) 301-4700
Facsimile: (617) 249-0947
Each party shall provide five (5) business days prior notice to the other party of any change in address, phone number, facsimile number ore-mail address.
All disputes arising under this agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflict of laws. The parties to this agreement will submit all disputes arising under this agreement to arbitration in Boston, Massachusetts before a single arbitrator of the American Arbitration Association (AAA). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney admitted to practice law in the Commonwealth of Massachusetts. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent the party from obtaining an injunction.
SIGNATURE PAGE OF REGISTRATION RIGHTS AGREEMENT
Your signature on this Signature Page evidences your agreement to be bound by the terms and conditions of the Investment Agreement and the Registration Rights Agreement as of the date first written above.
The undersigned signatory hereby certifies that he has read and understands the Registration Rights Agreement, and the representations made by the undersigned in this Registration Rights Agreement are true and accurate, and agrees to be bound by its terms.
DUTCHESS OPPORTUNITY FUND, II, LP,
By:
Douglas H. Leighton
Managing Member of:
Dutchess Capital Management, II, LLC
General Partner to:
Dutchess Opportunity Fund, II, LP
LOGIC DEVICES, INCORPORATED, INC.
By:
William J. Volz
President and Chief Executive Officer
By:
Kimiko Milheim
Chief Financial Officer