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Exhibit 10.7
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This COMMON STOCK AND WARRANT PURCHASE AGREEMENT ("Agreement") is entered
into as of November 26, 1997, by and between Bogen Communications International,
Inc., a Delaware corporation, (the "Company") and D & S Capital, LLC (the
"Investor").
SECTION 1. DESCRIPTION OF THE TRANSACTION
1.1 DESCRIPTION OF SECURITIES. The Company agrees to issue to the
Investors 46,295 shares of its authorized but unissued common stock, $.001 par
value per share (the "Common Stock") and warrants to purchase 250,000 shares of
Common Stock (in the form attached hereto as Exhibit A) (the "Warrants"), for an
aggregate purchase price of $250,000 (the "Purchase Price"). The Warrants will
be convertible into shares of the Company's common stock, $.001 par value per
share (the "Common Stock"), in accordance with the terms set forth therein. Any
securities of the Company issued or issuable upon exercise of the Warrants are
referred to as "Warrant Shares."
1.2 CLOSING. The closing (the "Closing") of the sale of the Common Stock
and Warrants will take place at the offices of XxXxxxxxx Will & Xxxxx, 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX, at 10:00 a.m., on the date of this Agreement,
or such other time and place as agreed to by the parties (the "Closing Date").
At the Closing, the Company will deliver the Common Stock and Warrants being
acquired by the Investor upon payment of the Purchase Price to the Company by
certified or bank cashier's check, or by other form of payment acceptable to the
Company.
1.3 CONDITIONS TO CLOSING. At or prior to the Closing, the Company shall
have delivered to the Investor:
(i) copies of (A) the resolutions of the Board of Directors of the
Company, or an authorized committee thereof, authorizing and approving
this Agreement and the issuance of the Common Stock and Warrants; and (B)
votes of the Board of Directors, to be effective immediately upon
consummation of the Closing, providing for (x) the setting of the size of
the Board of Directors at seven (7), (y) the election of Xxx Xxxx and
Xxxxxxx Xxxxxxxxx (the "Investor Nominees") to the Company's Board of
Directors, and (z) the election of one of the Investor Nominees to the
Executive Committee and the Nominating Committee (if any).
SECTION 2. REPRESENTATIONS OF THE COMPANY
As part of the basis of this Agreement, the Company represents to the
Investors that on the date hereof:
2.1 ORGANIZATION. The Company and each of its subsidiaries (each a
"Subsidiary") is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, and is
qualified to do business as a foreign corporation in all other jurisdictions
where the failure to so qualify would have a material adverse effect on the
Company.
2.2 CORPORATE POWER. The Company and each Subsidiary has all requisite
power and authority to own its respective properties and to carry on its
respective business as presently conducted and as proposed to be conducted. The
Company has all requisite corporate power and authority to enter into and
perform this Agreement and to carry out the transactions contemplated by this
Agreement.
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2.3 AUTHORIZATION. This Agreement and all documents executed pursuant to
this Agreement are valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms. The execution, delivery and
performance of this Agreement and the issuance of the Common Stock and the
Warrant Shares have been, or will be upon such issuance, duly authorized by all
necessary corporate action of the Company.
2.4 CAPITALIZATION. All of the presently outstanding shares of capital
stock of the Company have been validly authorized and issued and are fully paid
and nonassessable. The Common Stock has been validly authorized and, when
delivered and paid for pursuant to this Agreement, will be validly issued, fully
paid and nonassessable and free of all encumbrances and restrictions, except
restrictions on transfer imposed by applicable securities laws and/or this
Agreement. The Company has authorized and reserved for issuance upon exercise of
the Warrants, Common Stock sufficient for the exercise of the Warrants. Warrant
Shares will be, when and if issued, validly authorized and issued, fully paid
and nonassessable and free of all encumbrances and restrictions, except
restrictions on transfer imposed by applicable securities laws and/or this
Agreement.
2.5 PREEMPTIVE RIGHTS. There are no preemptive rights affecting the
issuance or sale of the Company's capital stock.
2.6 FINANCIAL STATEMENTS. The Company has filed with the Securities and
Exchange Commission (the "Commission") the audited consolidated financial
statements of the Company for the year ended December 31, 1996 and the unaudited
financial statements for the quarterly periods ended September 30, 1997. Such
financial statements have been prepared in accordance with generally accepted
accounting principles applied consistently, and present fairly the consolidated
financial condition of the Company as of the dates thereof, and the consolidated
results of operations of the Company for the period, or portion thereof, as
applicable, then ended (except, in the case of unaudited financial statements,
for year-end adjustments and footnotes). Since September 30, 1997, there has not
been any material adverse change, nor to the Company's knowledge is any such
change threatened, in the business, condition (financial or otherwise),
operations or properties, assets, or results of operation of the Company and its
Subsidiaries, taken as a whole.
2.7 EFFECT OF TRANSACTIONS. The Company's execution and delivery of this
Agreement, and its performance of the transactions contemplated by this
Agreement, will not, whether through consummation hereof, by the lapse of time,
the giving of notice or otherwise, (a) violate any judgment, decree or order, or
any material contract or obligation of the Company or any Subsidiary, (b)
violate any statute, rule or regulation of any federal, state or local
government or agency applicable to the Company or any Subsidiary, or any
material contract to which any employee of the Company or any Subsidiary is
bound, which violation, in each case, would have a material adverse effect on
the operations or financial condition of the Company, or (c) result in the
imposition of any material lien, charge, security interest or encumbrance upon
any property or assets of the Company or any Subsidiary.
2.8 BROKERAGE. There are no claims for brokerage commissions, finder's
fees or similar compensation in connection with the transactions contemplated by
this Agreement.
2.9 PUBLIC FILINGS. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, and its Quarterly Reports on Form 10-Q for
the three-month periods ended March 31, 1997, June 30, 1997 and September 30,
1997, respectively, as amended, when they were filed with the Commission,
conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder, and none of such documents contained an 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 not misleading.
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2.10 AMEX LISTING. The Company's Common Stock is listed for trading on the
American Stock Exchange, Inc. and no rules or regulations of the American Stock
Exchange, Inc. preclude or restrict in any way the execution and delivery of
this Agreement or the consummation of the transactions contemplated herein, nor
do such rules require shareholder or any other approval for the sale of the
Common Stock, the Warrants or the Warrant Shares.
2.11 DISCLOSURE. This Agreement, including the exhibits hereto, do not
contain any untrue statement of material fact or, when taken as a whole, omit
any material fact necessary in order to make the statements contained herein or
therein not misleading.
2.12 CONSENTS, NOTICE. Except for those which have been obtained prior to
the date hereof, no consent, approval, order or authorization of or declaration,
registration or filing with any governmental body or any nongovernmental person,
including, without limitation, any creditor or shareholder of the Company or any
of its Subsidiaries, or any party to a contract to which the Company or any
Subsidiary is a party or any of their respective assets is subject, is required
in connection with the execution or delivery by the Company of this Agreement,
or the performance by the Company of its obligations hereunder and thereunder,
or as a condition to the legality, validity or enforceability of this Agreement
as the sale and issuance of the Common Stock, the Warrants or the Warrant
Shares, except for such consents or approvals the absence of which would not
have a material effect on the Company operations, financial condition or the
transactions herein contemplated.
2.13 LITIGATION. There are no actions, suits, arbitrations, investigations
or proceedings pending, or, to the knowledge of the Company, threatened against
or affecting the Company or any of its Subsidiaries or any of their properties
or rights of any of them. There is no judgment, decree, injunction, rule or
order of any government body or arbitrator outstanding against the Company or
any Subsidiary.
SECTION 3. REPRESENTATIONS AND AGREEMENTS OF THE INVESTOR
As part of the basis of this Agreement, the Investor represents to the
Company that on the date hereof:
3.1 AUTHORIZATION. The Investor has all requisite corporate or other power
and authority to enter into and perform this Agreement and the execution of this
Agreement and the documents executed by the Investor pursuant to this Agreement
have been authorized by all necessary corporate or other action on the part of
the Investor, have been executed and delivered, and constitute valid, legal,
binding agreements of the Investor enforceable against the Investor in
accordance with their terms.
3.2 INVESTMENT PURPOSE. The Investor is acquiring the Common Stock and
Warrants for its own account, for investment, and not with a view to any
"distribution" within the meaning of the Securities Act of 1933, as amended (the
"Securities Act"). The Investor has no intention to make any transfer of the
Common Stock or Warrants in violation of the Securities Act. No broker-dealer
acted on behalf of the Investor in connection with the offer or sale of the
Common Stock and/or Warrants.
3.3 TRANSFER RESTRICTIONS; COMPANY REDEMPTION RIGHT. (a) The Investor
understands that because the Common Stock, the Warrants and Warrant Shares have
not been registered under the Securities Act, it cannot dispose of any or all of
the Common Stock and Warrant Shares unless such Common Stock, the Warrants and
Warrant Shares are subsequently registered under the securities Act or
exemptions from such registration are available and that the Common Stock, the
Warrants and Warrant Shares will contain legends reflecting such limitations.
The Investor acknowledges and understands that, except as provided in SECTION 4
of this Agreement with respect to the Registerable Securities (as defined in
Section 4.1 hereof), it has no independent right to require the Company to
register the Common Stock or Warrant Shares. The Investor understands that the
Company may, as a condition to the transfer of any of the Common Stock, the
Warrants or
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Warrant Shares, require that the request for transfer be accompanied by an
opinion of counsel, in form and substance satisfactory to the Company, to the
effect that the proposed transfer does not result in a violation of the
Securities Act, unless such transfer is covered by an effective registration
statement under the Securities Act.
(b) The Investor agrees that it shall not, without the prior consent of
the Company, sell, transfer or assign (but that it may pledge as collateral) any
of the 46,295 shares of Common Stock purchased hereunder so long as either of
the Investor Nominees shall be a director or officer of the Company; provided,
however, the restriction set forth herein shall expire on the second (2nd)
anniversary of the date hereof.
(c) The Company shall have the right to elect to redeem, repurchase or
otherwise acquire from the Investor for $.001 per share any portion of the
Warrant which is, as of the date of the Company's notice of such election, not
exercisable or transferable under the terms of Section 1 of the Warrant;
provided, however, that such right of the Company shall not be available to it
until the expiration of one hundred twenty (120) days following the date on
which neither of the Investor Nominees shall be a member of the Company's Board
of Directors.
3.4 SOPHISTICATION. The Investor is knowledgeable and experienced in
business and financial matters and capable of evaluating the merits and risks of
the investment in the Common Stock and Warrants, is able to bear the economic
risk of loss of its investment in the Company, has been granted the opportunity
to make a thorough investigation of the affairs of the Company, and has availed
itself of such opportunity either directly or through its authorized
representatives.
3.5 PRIVATE OFFERING. The Investor has been advised that the Common Stock
and Warrants have not been and are not being registered under the Securities Act
or under the "blue sky" laws of any jurisdiction and that the Company in issuing
the Common Stock and Warrants is relying upon, among other things, the
representations and warranties of such Investor contained in this SECTION 3 in
concluding that such issuance is a "private offering" and does not require
compliance with the registration provisions of the Securities Act. The Investor
is an "accredited investor" within the meaning of Rule 501 under the Securities
Act.
SECTION 4. REGISTRATION RIGHTS
4.1 DEFINITIONS. For purposes of this Section 4: (a) the term "Registrable
Securities" means the Common Stock and the Warrant Shares; and (b) the term
"Holder" means any person owning or having the right to acquire Registrable
Securities.
4.2 REQUEST FOR REGISTRATION.
(a) If at any time the Company shall receive a written request from
Holders of a majority of the Registrable Securities then outstanding that the
Company file a registration statement under the Securities Act, then the Company
shall use its best efforts to effect as soon as practicable, after the receipt
of such request, the registration under the Securities Act of the number of such
Registrable Securities which such Holders (and any other Holders who may also
elect to participate within 10 days thereafter) request to be registered.
Without the prior written consent of the Holders requesting a registration,
neither the Company, nor any other person (other than the other Holders), shall
be entitled to include Common Stock in the registrations made under this Section
4.2. The Company is obligated to effect one completed and effective registration
pursuant to this Section 4.2.
(b) Notwithstanding the foregoing, if the Company shall furnish to Holders
requesting a registration statement pursuant to this Section 4.2, a certificate
signed by an executive officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company (excluding the Investor
Nominees) it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such
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filing for a period of not more than one hundred twenty (120) days after receipt
of the request of the Holders; provided, however, that the Company may not
utilize this right more than once in any twelve month period.
4.3 INCIDENTAL REGISTRATION. If (but without any obligation to do so) the
Company proposes at any time to register (including for this purpose a
registration effected by the Company for shareholders other than the Holders)
any shares of its capital stock or other securities under the Securities Act
(other than a registration relating solely to securities issued in connection
with mergers, acquisitions, exchange offers, dividend reinvestment plans,
employee stock ownership plans or stock option plans, thrift plans, pension
plans or other employee benefit plans, or a registration on any form which does
not include substantially the same information, other than information related
to the selling shareholders or their plan of distribution, as would be required
to be included in a registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give each Holder written
notice of such registration. Upon the written request of each Holder given
within twenty (20) days after mailing of such notice by the Company, the Company
shall, subject to the provisions of Section 4.8, cause to be registered under
the Securities Act all of the Registrable Securities that each such Holder has
requested to be so registered. If at any time after giving such written notice
of its intention to register any of its securities and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register such securities, at
its sole election, the Company may give written notice of such determination to
each Holder and thereupon shall be relieved of its obligation to register any
Common Stock in connection with such registration.
4.4 RESERVED.
4.5 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 4 to
effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred eighty (180) days.
(b) Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered by
such registration statement under such other securities or Blue Sky laws of such
jurisdictions as shall be reasonably requested by the Holders, provided that the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
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(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) In the case of an underwritten public offering, furnish, at the
request of any Holder requesting registration of Registrable Securities pursuant
to this Section 4, on the date that such Registrable Securities are delivered to
the underwriters for sale in connection with a registration pursuant to this
Section 4 (i) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in such form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in such form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters.
4.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 4 with
respect to the Registrable Securities of any selling Holder that such Holder
shall have furnished to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
4.7 EXPENSES OF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to this Section 4, including without limitation, all
registration, filing and qualification fees, printers and accounting fees and
fees and disbursements of counsel for the Company shall be borne by the Company;
provided, however, in the event the Company includes in any registration
statement shares for sale for its own account, it shall pay the pro rata portion
of any underwriting discounts and commissions attributable to such securities
for its own account. Notwithstanding the immediately preceding sentence, the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 4.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all Holders participating
in such withdrawn registration shall bear such expenses pro rata, but shall also
be entitled to reassert such one demand registration pursuant to Section 4.2);
provided, however, that if at the time of such withdrawal the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such expenses and shall retain
their rights pursuant to Section 4.2.
4.8 UNDERWRITING REQUIREMENTS; CUTBACK. In connection with any offering
involving an underwriting of shares being issued by and sold on behalf of the
Company, the Company shall not be required under Section 4.3 to include any of
the Holders' securities in such underwriting unless they accept the customary
and reasonable terms of the underwriting as agreed upon between the Company and
the underwriters selected by it, and then only in such quantity as will not, in
the opinion of the underwriters, jeopardize the success of the offering by the
Company. If the total amount of securities, including Registrable Securities,
requested to be included in such offering exceeds the amount of securities that
the underwriters reasonably believe compatible with the success of the offering,
then Holders may include in the offering only that number of such Registrable
Securities which the underwriters believe will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata among the
Holders according to the total amount of securities entitled to be included
therein owned by each Holder or in such other proportions as shall mutually be
agreed to by such Holders); provided, however, Registrable Securities shall be
excluded from such offering only pro rata to the same extent as securities
proposed to be included for the account of other persons other than the Company
in such offering.
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4.9 INDEMNIFICATION AND CONTRIBUTION. In the event any Registrable
Securities are included pursuant to a registration statement under this Section
4:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Securities Act) and
each person if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several) to which they or any of them may become subject
under the Securities Act, the Exchange Act or any other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus (but only if such is not
corrected in the final prospectus) contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading (but only if such is not corrected in the final
prospectus), or (iii) any violation or alleged violation by the Company in
connection with the registration of Registrable Securities under the Securities
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
in this Section 4.9(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability or action to the extent that it arises out of or is
based upon a violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify and
hold harmless the Company, each of its directors, each of its officers who has
signed the registration statement, each person, if any, who controls the Company
within the meaning of the Securities Act, any underwriter, any other Holder
selling securities in such registration statement and any controlling person of
any such underwriter or other Holder, against any losses, claims, damages or
liabilities joint or several) to which any of the foregoing persons may become
subject, under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this Section 4.9(b), in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 4.9(b)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Holder, which consent shall not be unreasonably withheld; provided that in no
event shall any indemnity under this Section 7.9(b) exceed the net proceeds from
the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 4.9
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 4.9, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel selected by the indemnifying party, provided
that the indemnified party consents to such counsel, such consent to be not
unreasonably withheld; provided, however,
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that an indemnified party or parties shall have the right to retain their own
counsel, with the reasonable fees and expenses of one such counsel to be paid by
the indemnifying party with respect to all indemnified parties, if
representation of such indemnified party or parties by the counsel retained by
the indemnifying party, in the opinion of counsel appointed by the indemnified
party or parties, would be inappropriate due to actual or potential differing
interests between such indemnified party or parties and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 4.9, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 4.9.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 4.9(a) is
applicable but for any reason is held to be unavailable from the Company with
respect to all Holders or any Holder, the Company and the Holder or Holders, as
the case may be, shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted) to which the Company and one or more of the
Holders may be subject in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand, and the Holder or Holders on the
other, in connection with statements or omissions which resulted in such losses,
claims, damages or liabilities. Notwithstanding the foregoing, no Holder shall
be required to contribute any amount in excess of the net proceeds received by
such Holder from the Registrable Securities as the case may be, sold by such
Holder pursuant to the registration statement. 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. Each person, if any, who controls a Holder within
the meaning of the Securities Act shall have the same rights to contribution as
such Holder.
(e) The obligations of the Company and Holders under this Section 4.9
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 4 or otherwise.
4.10 "MARKET STAND-OFF AGREEMENT". The Investor hereby agrees that, during
the period of duration specified by the Company and an underwriter of common
stock or other securities of the Company (the "Stand-Off Period"), following the
effective date of a registration statement of the Company filed under the Act
covering securities to be sold by the Company, it shall not, to the extent
reasonably requested by the Company and such underwriter, directly or indirectly
sell, offer to sell, contract to sell (including, without limitation, any short
sale), grant any option to purchase or otherwise transfer or dispose of (other
than to donees who agree to be similarly bound) any securities of the Company of
the class being offered and sold pursuant to such registration statement held by
it at any time during the Stand-Off Period except common stock included in such
registration; provided, however, that the Stand-Off Period shall not exceed 180
days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instruments with respect to the Registrable Securities of the
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of the Stand-Off Period.
Notwithstanding the foregoing, the obligations described in this Section
4.10 shall not apply to a registration relating solely to employee benefit plans
on Form S-1 or Form S-8 or similar forms which may be promulgated in the future,
or a registration relating solely to a Commission Rule 145 transaction on Form
S-14 or Form S-15 or similar forms which may be promulgated in the future or any
registration statement filed in connection with the merger or consolidation of
the Company, or the issuance of Company securities in connection with its
acquisition of another business or assets.
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4.11 LETTER OR OPINION OF COUNSEL IN LIEU OF REGISTRATION. If in the
opinion of counsel for the Company, the Investor is able to sell all of its
Registrable Securities in a three-month period pursuant to Rule 144 under the
Securities Act, the Company will not be required to register any Registrable
Securities of the Investor, notwithstanding any provision of this Section 4 to
the contrary.
4.12 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 4 may
be amended or the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of a majority of the Registrable
Securities then outstanding. An amendment or waiver effected in accordance with
this Section shall be binding upon each Holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities are convertible), each future Holder of all such securities, and the
Company.
SECTION 5. GENERAL
5.1 AMENDMENTS, WAIVERS AND CONSENTS. Any consents required and any
waiver, amendment or other action of the Investor made only by consent(s) in
writing signed by the Investor. Any amendment or waiver made according to this
paragraph will be binding upon each holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities have been converted) and each future holder. Any amendment or waiver
by the Company must be made in writing.
5.2 SURVIVAL; ASSIGNABILITY OF RIGHTS. Except as set forth in Section 4,
all representations and agreements of the parties made in this Agreement and in
the certificates, exhibits or other written information delivered or furnished
by one party to the other in connection with this Agreement will survive for a
period of one (1) year.
5.3 GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PROVISIONS THEREOF.
5.4 COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be taken to be an original; but such
counterparts will together constitute one document.
5.5 NOTICES AND DEMANDS. Any notice or demand which is permitted or
required hereunder will be deemed to have been sufficiently received (except as
otherwise provided herein) (a) upon receipt when personally delivered, (b) one
(1) day after sent by overnight delivery or telecopy providing confirmation or
receipt of delivery, or (c) three (3) days after being sent by certified or
registered mail, postage and charges prepaid, return receipt requested to the
addresses shown on the signature page of this Agreement, or at any other address
designated by such applicable party in writing.
5.6 SEVERABILITY. If any provision of this Agreement is held invalid under
applicable law, such provision will be ineffective to the extent of such
invalidity, and such invalid provision will be modified to the extent necessary
to make it valid and enforceable. Any such invalidity will not invalidate the
remainder of this Agreement.
5.7 EXPENSES. The Company will reimburse the Investor for one-half of its
legal expenses incurred in connection with the preparation of this Agreement and
the consummation of the Closing in an amount that shall not exceed Seven
Thousand Five Hundred Dollars ($7,500) and in all other respects, each of the
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Company and the Investor will pay their respective costs and expenses that they
incur with respect to the negotiation, execution, delivery, amendment and/or
performance of this Agreement.
5.8 ENTIRE AGREEMENT. This Agreement (including the exhibits hereto) and
the agreements referenced as exhibits to this Agreement constitute the entire
agreement of the parties with respect to the subject matter thereof, and
supersede any prior agreements.
The undersigned have executed this Agreement as of the day and year first
written above.
COMPANY:
BOGEN COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
---------------------
Name:
Title:
Address:
Telecopy:
INVESTOR:
D&S CAPITAL, LLC
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Name:
Title:
Address:
Telecopy:
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