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Exhibit 10.2
CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT
This CONVERTIBLE PREFERRED STOCK PURCHASE AGREEMENT ("Agreement") is
entered into as of November 26, 1997, by and between Bogen Communications
International, Inc., a Delaware corporation, (the "Company") and the entities
set forth on Schedule A hereto, which are signatories to this Agreement (the
"Investors" or individually, an "Investor").
SECTION 1. DESCRIPTION OF THE TRANSACTION
1.1 DESCRIPTION OF SECURITIES. The Company agrees to issue to the
Investors 200,000 shares of its authorized but unissued Preferred Stock, $.001
par value per share, to be designated Series A Preferred Stock (the "Preferred
Shares"), for an aggregate purchase price of $20,000,000 (the "Purchase Price")
. The Preferred Shares will be convertible into shares of the Company's common
stock, $.001 par value per share (the "Common Stock"), in accordance with the
terms of the Designation (as defined in SECTION 1.3) . Any securities of the
Company issued or issuable upon conversion of the Preferred Shares (including
conversions of Preferred Shares issued as dividend payments on outstanding
Preferred Shares) are referred to as "Conversion Shares."
1.2 CLOSING. The closing (the "Closing") of the sale of the Preferred
Shares 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 Preferred Shares being acquired by the
Investors upon payment of the Purchase Price to the Company or the Company's
designees by wire transfer, by certified or bank cashier's check, or by other
form of payment acceptable to the Company. The Company will not be obligated to
sell any Preferred Shares unless the Investors purchase at the Closing all the
Preferred Shares described in SECTION 1.1 hereto.
1.3 CONDITIONS TO CLOSING. At or prior to the Closing, (a) the Company
shall have duly authorized and filed a Certificate of Designation Establishing
Series of Shares (the "Designation") with the Secretary of State of the State of
Delaware, substantially in the form attached hereto as Exhibit A; and
(b) the Company shall have delivered to the Investors:
(i) copies of (A) the resolutions of the Board of Directors of the
Company, or an authorized committee thereof, authorizing and approving
this Agreement, the Designation and all of the transactions and
agreements contemplated hereby, including resolutions specifically
acknowledging that the purchase of the Preferred Shares and Conversion
Shares is, and shall be considered at all times, a transaction approved
by the Company's Board of Directors for purposes of Delaware General
Corporation Law Section 203, and certified by the Secretary of the
Company as being true, correct, complete and in full force and effect
and unmodified as of the Closing Date, and (B) the Certificate of
Incorporation and Bylaws of the Company, each as amended to date; and
(C) copies of a fully executed and enforceable purchase agreement
between the Company and Geotek Communications Inc. ("Geotek") pursuant
to which the Company will purchase from Geotek for $18,500,000,
simultaneously with the Closing, all of the Company's Common Stock and
Common Stock Warrants then owned by Geotek, (but in no case not less
than 3,701,919 shares of Common Stock and 200,000 Common Stock
Warrants) (the "Geotek Purchase"); and (D) fully executed and
enforceable agreements providing for the full-time employment by the
Company of Xxx Xxxx and Xxxxxxx Xxxxxxxxx (the "Executives") as senior
executives and directors of the Company; and (E) resignations from the
Company's Board of Directors of Xxxxx Xxxxx, Xxx Xxxxx, Xxxx Xxxxxx and
Xxxxxx Xxxxxxx; and (F) 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
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seven (7), (y) the election of Xxxxxxx Xxxxxxx and Xxxxx Xxxxxxxx (the
"Investor Nominees") and the Executives to the Company's Board of
Directors, and (z) the election of one of the Investor Nominees to each
of the Executive Committee, Nominating Committee (if any), Compensation
Committee and Audit Committee (all of which shall have three members)
and the election of one of the Executives to the Executive Committee
and the Nominating Committee (if any).
(ii) a certificate of the Secretary of the Company certifying the names
of the officer or officers of the Company authorized to execute this
Agreement and any and all documents, agreements and instruments
contemplated herein; and
(iii) such other documents, instruments, and certificates as the
Investors may reasonably request including a legal opinion with respect
to certain matters set forth herein.
The Company acknowledges and agrees that the purpose and intent of the
transactions herein agreed to is to provide funds necessary for the simultaneous
consummation of the Geotek Purchase and for other general corporate purposes,
and that if for any reason the Geotek Purchase is not so consummated, then this
Agreement shall be canceled and of no further force and effect and all and every
part of the Purchase Price shall be immediately returned to the Investors,
without regard to the reasons for such non-consummation.
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. The copies of the Certificate of Incorporation and Bylaws of the
Company, each as amended to date, which have been furnished to the Investor, are
correct and complete.
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 Preferred Shares and the
Conversion Shares have been, or will be upon such issuance, duly authorized by
all necessary corporate action of the Company.
2.4 CAPITALIZATION. The authorized and issued capital stock of the
Company (including outstanding options and warrants, whether or not currently
exercisable) is as set forth in Schedule 2.4. 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 Preferred Shares have 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 relative rights, preferences, restrictions and
other provisions relating to the Preferred Shares are as set forth in the
Designation. The Company has authorized and reserved for issuance upon
conversion of the Preferred Shares of its Common Stock sufficient for the
conversion of the Preferred Shares. Conversion Shares will be, when and
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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. Except as set forth on Schedule 2.8 hereto, 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.
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
Preferred Shares or the Conversion 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.
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2.12 CONSENTS, NOTICE. 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
Preferred Shares or Conversion 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 OF THE INVESTORS
As part of the basis of this Agreement, each Investor for itself
severally hereby 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. The copies of the Investor's partnership agreement,
operating agreement or charter authorizing its entry into this Agreement, and
furnished to the Company, are correct and complete.
3.2 INVESTMENT PURPOSE. The Investor is acquiring the Preferred Shares
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 Preferred
Shares in violation of the Securities Act. No broker-dealer acted on behalf of
the Investor in connection with the offer or sale of the Preferred Shares.
3.3 RESTRICTIONS. (a) The Investor understands that because the
Preferred Shares and Conversion Shares have not been registered under the
Securities Act, it cannot dispose of any or all of the Preferred Shares and
Conversion Shares unless such Preferred Shares and Conversion Shares are
subsequently registered under the securities Act or exemptions from such
registration are available and that the Preferred Shares and Conversion 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 Conversion Shares, it has no independent right to require the Company to
register the Preferred Shares. The Investor understands that the Company may, as
a condition to the transfer of any of the Preferred 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 and acknowledges that each of the Investor
Nominees, or any successor elected to the Board who is nominated at the request
of the holders of Preferred Shares, shall recuse themselves and be deemed
ineligible (both for quorum and voting purposes) on voting as Directors with
respect to the matters set forth in Section 3(b), 4, 6A and 7A of the
Designation and in Section 4.2 of the Agreement.
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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 Preferred Shares, 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 Preferred
Shares 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 Preferred Shares and the Conversion Shares issuable upon conversion thereof
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 Conversion Shares which have not been previously
registered, or which have not previously been registered and remain subject to
an effective registration statement; 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 the Applicable Percentage (as defined below) of 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 thereafter elect to participate)
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
only three completed and effective registrations pursuant to this Section 4.2.
For purposes hereof, the "Applicable Percentage" shall be twenty percent (20%)
for the first such registration, forty percent (40%) for the second such
registration, and sixty percent (60%) for the third such registration. Any
request by a Holder hereunder shall be forwarded to other Holders within three
(3) days of receipt by the Company.
(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 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 registrations 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
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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
Registrable Securities 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.
(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
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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 commission 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 Registrable Securities so included to be apportioned pro rata
among the Holders according to the total amount of Registrable 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 persons
other than the Company in such offering.
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
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"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, 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 by the counsel retained by the
indemnifying party or parties, in the opinion of counsel appointed by the
indemnified party or parties, would be inappropriate due to an actual conflict
of interest between such indemnified party or parties and any other party or
parties 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
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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". Each 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 instructions with respect to the Registrable Securities of each
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.
4.11 LETTER OR OPINION OF COUNSEL IN LIEU OF REGISTRATION. If in the
opinion of counsel for the Company, an Investor is able to sell all of his
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
Shares of that 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
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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 or holder of the Preferred
Shares (or Conversion Shares) may be made only by consent(s) in writing signed
by the holders of a majority of the Preferred Shares (including, for such
purposes, any Conversion Shares that have not been sold to the public) . 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 the delivery of the Preferred Shares 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 Investors for one-half of
their legal expenses incurred in preparation of this Agreement and to consummate
effect the Closing in an amount that shall not exceed Fifteen Thousand Dollars
($15,000) and in all other respects, each of the Company and the Investors 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.
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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:
METROPOLITAN CAPITAL ADVISORS
INTERNATIONAL LIMITED
By:Metropolitan Capital Partners, III, L.P.
its Investment Advisor
By:Metropolitan Capital III, Inc.
its General Partner
By: /s/ Xxxxx Xxxxxxxx
--------------------------------
Xxxxx Xxxxxxxx, President
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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:
BEDFORD FALLS INVESTORS, L.P.
By:Metropolitan Capital Advisors, L.P.
its General Partner
By:Metropolitan Capital Advisors, Inc.
its General Partner
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, President
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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:
BGN INVESTORS, LLC
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx, Managing Member
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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:
XXXXXXX CAPITAL MANAGEMENT, L.P.
By:S&E Partners, L.P.
its General Partner
By:Xxxxxxx, Inc.
its General Partner
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Xxxxxx Xxxxxxxx, Chief Executive Officer
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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:
XXXXXXX INTERNATIONAL FUND, LTD.
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxx, its Trading Advisor
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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:
XXXXXXX PARTNERS, L.P.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx, its General Partner
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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:
YORK CAPITAL MANAGEMENT, L.P.
By: Dinan Management, LLC
its General Partner
By: /s/ Xxxxx X. Xxxxx, Xx.
----------------------------------------
Xxxxx X. Xxxxx, Xx., Managing Member
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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:
YORK SELECT, L.P.
By: Dinan Management, LLC
its General Partner
By: /s/ Xxxxx X. Xxxxx, Xx.
--------------------------------------
Xxxxx X. Xxxxx, Xx., Managing Member
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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:
YORK INVESTMENT LTD.
By: Dinan Management Corp.
its Investment Advisor
By: /s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx, President
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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:
HIGHBRIDGE INTERNATIONAL LDC
By: Highbridge Capital Management, Inc.
its Investment Advisor
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx, Co-Chairman
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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:
WAVELAND PARTNERS, L.P.
By: Waveland Capital Management, L.P.
its General Partner
By: Clincher Capital Corporation
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Xxxxx X. Xxxxxxx, President
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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:
GOTHAM CAPITAL III, L.P.
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------
Xxxx Xxxxxxxxxx, General Partner
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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:
XXXXXX PARTNERS LLC
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------
Xxxx Xxxxxxxxxx, Managing Member
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