Exhibit 10.1
Execution Copy
PURCHASE AGREEMENT dated as of March 26, 2004 (this "Agreement")
between (i) TELEX COMMUNICATIONS HOLDINGS, INC., a Delaware corporation (the
"Company"), and (ii) XXXXXXX X. XXXXXXXXX ("Executive").
Witnesseth:
Whereas, the Company and Executive have entered into an Employment
Agreement dated as of April 14, 2003, as amended (the "Employment Agreement")
pursuant to which Executive would serve as the President and Chief Executive
Officer of the Company; and
Whereas, pursuant to the Employment Agreement, the Company agreed to
issue to Executive shares of Common Stock and an option to purchase additional
shares of Common Stock; and
Whereas, the Employment Agreement was assigned by the Company to Telex
Communications, Inc., a Delaware corporation ("Telex"), an indirect,
wholly-owned subsidiary of the Company on November 19, 2003; and
Whereas, the Company and Executive entered into a Subscription and
Option Agreement (the "Subscription Agreement") dated as of January 14, 2004
pursuant to which (i) the Company sold to the Executive 300,000 shares (the
"Shares")of the Company's common stock, par value $.01 per share ("Common
Stock") and (ii) granted the Executive an option to purchase an additional
100,000 shares of Common Stock, all in accordance with the terms of the
Subscription Agreement; and
Whereas, the Company desires to repurchase the Shares and cancel the
Subscription Agreement, all on the terms set forth herein.
Now, therefore, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. Repurchase of Shares. Simultaneously with the execution and
delivery of this Agreement, Executive shall sell to the Company, and the Company
shall purchase from Executive, the Shares at a price of $0.30 per Share (the
"Purchase Price"), or $90,000.00 in the aggregate, in cash or by check. The
Company and Executive acknowledge that certificates evidencing the Shares were
never issued to Executive. Accordingly, no certificates shall be issued for the
Shares.
2. Cancellation of Subscription Agreement. Upon the Company's
receipt of the Purchase Price, the Subscription Agreement shall be terminated
and of no further force and effect.
3. Further Actions. From time to time, as and when requested by
either party hereto, the other party shall execute and deliver, or cause to be
executed and delivered, such documents and instruments and shall take, or cause
to be taken, such further or other actions as may be deemed necessary or
desirable to carry out the intent and purposes of this Agreement and to
consummate and give effect to, or to evidence, the transactions hereunder and
the provisions of this Agreement.
4. Miscellaneous.
(a) This Agreement contains the entire agreement among
the parties to this Agreement with respect to the transactions hereunder and
supersedes all prior arrangements or understandings with respect thereto. For
avoidance of doubt, this Agreement shall not supersede the terms of the
Employment Agreement, which shall remain in effect in accordance with its terms.
(b) The descriptive headings of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any provision of this Agreement.
(c) All notices or other communications which are
required or permitted under this Agreement shall be in writing and sufficient if
delivered personally or sent by facsimile transmission, internationally
recognized over-night courier or registered or certified mail, postage prepaid,
addressed as follows:
If to the Company: with a copy to:
00000 Xxxxxxxx Xxxxxx Stroock & Stroock & Xxxxx LLP
Xxxxxxxxxx, Xxxxxxxxx 00000 000 Xxxxxx Xxxx
Telephone: 000.000.0000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 952.886.3754 Telephone: 000.000.0000
Attention: Xxxxxxxx X. Xxxxx Facsimile: 212.806.6006
General Counsel Attention: Xxxxxx Xxxxxxx
If to Executive:
000 Xxxxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Any such notices or communications shall be deemed to have been received: (i) if
delivered personally or sent by facsimile transmission (with transmission
confirmed in a writing) or nationally recognized overnight courier; or (ii) if
sent by registered or certified mail, on the date on which such mailing was
received by the party to whom it was addressed. Any party may by
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notice as aforesaid change the address to which notices or other communications
to it are to be delivered or mailed.
(d) This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware.
(e) Any action, suit or other proceeding initiated by any
party hereto against the others under or in connection with this Agreement may
be brought only in the United States District Court for the District of Delaware
or a Delaware state court located in the City of Wilmington having appropriate
jurisdiction. The parties hereto hereby submit themselves to the jurisdiction of
any such court for the purpose of any such action and agree that service of
process on them in any such action, suit or proceeding may be effected by the
means by which notices are to be given to it under this Agreement.
(f) The parties hereto acknowledge that the award of
damages for any breach of the obligations undertaken by the parties hereto may
be insufficient and inadequate and that the parties hereto shall be entitled to
obtain specific performance of the obligations of the other parties under this
Agreement or other injunctive relief, in addition to damages.
(g) In the event that it shall be necessary for any party
to this Agreement to commence litigation to enforce its rights under this
Agreement, and in the event that it is finally determined by a court of
competent jurisdiction that the party against whom such enforcement is sought is
in material breach of its obligations under this Agreement, then the prevailing
party shall be entitled also to its legal costs in connection with the
enforcement of such rights. In the event that it is finally determined by a
court of competent jurisdiction that the party against whom such enforcement is
sought is not in material breach of its obligations under this Agreement, then
such party shall be entitled to its legal costs in connection with the defense
of the action brought against it.
(h) Neither this Agreement nor any claims or rights under
this Agreement shall be assignable otherwise than by operation of law by any
party without the prior written consent of the other parties, and any purported
assignment by any party without the prior written consent of the other parties
shall be void. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors (whether by merger or
otherwise) and permitted assigns.
(i) Any waiver of any term or condition of this
Agreement, or any amendment or supplementation of this Agreement, shall be
effective only if in writing. A waiver of any breach or failure to enforce any
of the terms or conditions of this Agreement shall not in any way affect, limit
or waive a party's rights under this Agreement at any time to enforce strict
compliance thereafter with every term or condition of this Agreement.
(j) Notwithstanding any other provision of this
Agreement, this Agreement shall not create benefits on behalf of any third party
or any other Person; and this Agreement shall be effective only as among the
parties hereto, their successors and permitted assigns.
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(k) In the event that any provision contained in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and the remaining provisions of this Agreement
shall not, at the election of the party for whose benefit the provision exists,
be in any way impaired.
(l) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement or the terms hereof to produce or
account for more than one of such counterparts.
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In witness whereof, the undersigned have executed this Agreement as of
the date first above written.
TELEX COMMUNICATIONS, HOLDINGS, INC. Executive:
By:__________________________ _____________________________
Name: Xxxxxxx Xxxxxxx XXXXXXX X. XXXXXXXXX
Title: Chief Financial Officer
SPOUSAL CONSENT
The undersigned, being the spouse of Xxxxxxx X. Xxxxxxxxx
("Executive"), hereby: (i) consents to the terms and conditions of the Purchase
Agreement dated as of March 26, 2004 (the "Agreement") between Telex
Communications Holdings, Inc. (the "Company") and Executive; (ii) agrees that
all actions taken from time to time by Executive under the Agreement shall be
binding upon the undersigned without the necessity of any consent,
acknowledgment or confirmation by the undersigned; and (iii) acknowledges that
the Company is relying upon the execution by the undersigned of this Spousal
Consent in connection with the execution and performance by the Company of the
Agreement.
In witness whereof, the undersigned has executed this Spousal Consent
as of ______________, 2004.
Spouse of Executive:
___________________________________
Xxxxxxx Xxxxxxxxx
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