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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1 )*
---
Osicom Technologies, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock
- --------------------------------------------------------------------------------
(Title of Class of Securities)
688271-40-2
--------------------------------------------------------------
(CUSIP Number)
Christopher Vizas Steven M. Kaufman, Esq.
Asia Broadcasting and Communications Network, Ltd. Hogan & Hartson L.L.P.
979/81-95 Phaholyothin Road 555 Thirteenth Street, N.W.
Phayathai, Bangkok 10400 Thailand Washington, DC 20004
(662) 617-1950-79 (202) 637-5736
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
April 4, 1997
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
<TABLE>
<S> <C>
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CUSIP No. 688271-40-2 Page 2 of 7 Pages
------------------------------------ ------- --------
- -------------------------------------------------- -----------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Asia Broadcasting and Communications Network, Ltd.
- -----------------------------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Bermuda
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7 SOLE VOTING POWER
674,419
NUMBER OF
SHARES -----------------------------------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY - 0 -
EACH
REPORTING -----------------------------------------------------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH 674,419
-----------------------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
- 0 -
- -----------------------------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
674,419
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
- -----------------------------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.7%
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14 TYPE OF REPORTING PERSON*
CO
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</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE> 3
Page 3 of 7 Pages
Item 1. Security and Issuer
This statement relates to the common stock, par value $.10 per
share (the "Osicom Common Stock"), of Osicom Technologies, Inc. (the "Issuer"
or "Osicom"). The principal executive offices of the Issuer are located at
2800 28th Street, Suite 100, Santa Monica, California 90405.
Item 2. Identity and Background
This statement is being filed by Asia Broadcasting and
Communications Network, Ltd., a Bermuda corporation ("ABCN"), whose principal
business and office address is 979/81-95 Phaholyothin Road, Phayathai, Bangkok
10400 Thailand. ABCN, directly or through its subsidiaries, is developing a
direct broadcasting satellite (DBS) system to provide DBS television services,
multimedia and other information products to various countries in Asia. ABCN
has not during the last five years been (i) convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or (ii) a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Attached as Appendix I hereto and incorporated herein by
reference is a list containing the (a) name, (b) business address, and (c)
present principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment is
conducted, of each director and executive officer of ABCN. To ABCN's
knowledge, during the past five years, none of such directors and executive
officers has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration
ABCN has acquired a total of 674,419 shares of Osicom Common
Stock directly from the Issuer on March 20, 1997 in exchange for 5,000,000
shares of the common stock of ABCN, par value U.S. $0.35 per share ("ABCN
Common Stock"), in each case subject to certain adjustments based on future
events. The aggregate value of the 5,000,000 shares of ABCN Common Stock
issued in the exchange is U.S. $7,250,000. The source of the consideration for
the Osicom Common Stock was ABCN's authorized but unissued shares of ABCN
Common Stock.
<PAGE> 4
Page 4 of 7 Pages
Item 4. Purpose of Transaction
The acquisition of the Osicom Common Stock by ABCN was part of
an exchange of shares of common stock by and between the Issuer and ABCN as one
portion of the formation of a strategic alliance between the parties. Also as
part of that strategic alliance, Osicom will serve as a developer and supplier
of technology and infrastructure to support high-speed Internet access and
online services to be provided in connection with ABCN's DBS system in Asia.
ABCN, depending upon market conditions and other factors, in
the future, may hold the shares of Osicom Common Stock or dispose of all or a
portion of the Osicom Common Stock which ABCN now owns or hereafter may
acquire. In this regard, ABCN has been granted certain rights by the Issuer to
have the Osicom Common Stock reported herein registered for sale under the
Securities Act of 1933, as amended (the "Securities Act"), under certain terms
and conditions.
Except as set forth above, ABCN has no present plans or
proposals that relate to, or would result in, an extraordinary corporate
transaction involving the Issuer or any of its subsidiaries, a sale or transfer
of any of the Issuer's assets, a change in the present Board of Directors or
management of the Issuer, a change in the present capitalization or dividend
policy of the Issuer, any other material change in the Issuer's business or
corporate structure, changes in the Issuer's charter or bylaws or with respect
to the delisting or deregistration of any of the Issuer's securities.
Item 5. Interest in Securities of the Issuer
On March 20, 1997, ABCN agreed to acquire 674,419 shares of
Osicom Common Stock in exchange for 5,000,000 shares of ABCN Common Stock
pursuant to a Share Purchase Agreement (the "Share Purchase Agreement") by and
between ABCN and the Issuer. As a result, upon issuance of such shares, ABCN
became the beneficial owner of 674,419 shares of Osicom Common Stock, which
represented approximately 5.7% of the outstanding Osicom Common Stock as of
March 28, 1997. ABCN has the sole power to vote (or to direct the vote) and
the sole power to dispose (or to direct the disposition) of all of these
shares.
Except as set forth in Item 4, to ABCN's knowledge, (i)
neither ABCN nor any subsidiary or affiliate of ABCN, nor any director or
executive officer of ABCN beneficially owns any shares of Osicom Common Stock;
and (ii) there have been no transactions in Osicom Common Stock in the sixty
days preceding the purchase reported in the preceding paragraph by ABCN or by
any of ABCN's subsidiaries, affiliates, directors or executive officers. No
person other than ABCN has the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the shares of
Osicom Common Stock beneficially owed by ABCN.
<PAGE> 5
Page 5 of 7 Pages
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
The Share Purchase Agreement, dated March 20, 1997 (the "Share
Purchase Agreement"), by and between ABCN and Osicom provides that ABCN acquire
a total number of shares of Osicom Common Stock with an aggregate value of U.S.
$7,250,000, or 674,419 shares of Osicom Common Stock, in exchange for 5,000,000
shares of ABCN Common Stock. The Share Purchase Agreement also grants to
Osicom an option (the "Option") to purchase 5,000,000 shares of ABCN Common
Stock upon the occurrence of certain events for an aggregate purchase price of
U.S. $7,250,000. The Option terminates twelve months after the date on which
ABCN's shares initially become publicly traded.
The Share Purchase Agreement provides for (i) an equitable
adjustment in the number of shares of ABCN Common Stock issued to Osicom upon
the occurrence of a stock dividend, stock split or similar event affecting the
ABCN Common Stock, and (ii) an equitable adjustment in the number of shares of
Osicom Common Stock issued to ABCN as of the date such shares become freely
tradeable, such that the aggregate value of such shares of Osicom Common Stock
as of such date shall not be less than $5,000,000. Additionally, in the event
that prior to April 15, 1998, ABCN issues or sells ABCN Common Stock or any
security convertible into or exchangeable for ABCN Common Stock for a price
less than the purchase price per share for the ABCN Common Stock purchased by
Osicom under the Share Purchase Agreement, ABCN will issue to Osicom additional
shares of ABCN Common Stock. ABCN has been granted certain rights by Osicom
pursuant to the Share Purchase Agreement to have the Osicom Common Stock
reported herein registered for sale under the Securities Act under certain
terms and conditions. The foregoing description of the Share Purchase
Agreement does not purport to be complete, and is qualified in its entirety by
the terms of such document which is filed as an exhibit to this statement and
is incorporated herein by reference.
Pursuant to a Loan Agreement dated as of April 4, 1997, ABCN
has entered into a margin loan arrangement in the aggregate principal amount of
$3,000,000 (the "Loan") with Credit Agricole Lazard Financial Products Bank
("Lender"). In connection with the Loan, ABCN and Lender entered into a Pledge
and Security Agreement, dated as of April 4, 1997 (the "Pledge Agreement"),
pursuant to which ABCN has granted to Lender a first priority security interest
in all of the 674,419 shares of Osicom Common Stock owned by ABCN and
referenced herein (the "Pledged Shares"). Under the Pledge Agreement and a
related Registration Rights Assignment and Indemnification Agreement, dated as
of April 4, 1997, by and among ABCN, Lender and the Issuer, in the event of
default by ABCN under the Pledge Agreement, Lender will have the benefit of the
registration rights associated with the Pledged Shares.
The foregoing descriptions of each of the Pledge Agreement and
Registration Rights Agreement do not purport to be complete, and are qualified
in their
<PAGE> 6
Page 6 of 7 Pages
entirety by the terms of such documents which are filed as exhibits to this
statement and are incorporated herein by reference.
Subject to the foregoing and except as described in this
statement, there are no contracts, arrangements, understandings, or
relationships (legal or otherwise) between ABCN and any persons with respect to
any securities of the Issuer.
Item 7. Materials to be Filed as Exhibits
Exhibit 1* Share Purchase Agreement dated March 20, 1997, by and between
Asia Broadcasting and Communications Network, Ltd. and Osicom
Technologies, Inc.
Exhibit 2 Pledge and Security Agreement dated as of April 4, 1997, by
and between Asia Broadcasting and Communications Network, Ltd.
and Credit Agricole Lazard Financial Products Bank.
Exhibit 3 Registration Rights Assignment and Indemnification Agreement
dated as of April 4, 1997, by and between Asia Broadcasting
and Communications Network, Ltd., Credit Agricole Lazard
Financial Products Bank and Osicom Technologies, Inc.
- ------------
* Incorporated by reference to the report of Asia Broadcasting and
Communications Network, Ltd. on Schedule 13D filed with the Securities
and Exchange Commission on April 3, 1997 (File No. 005-47159).
<PAGE> 7
Page 7 of 7 Pages
Signature
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this Amendment No. 1 to
Schedule 13D is true, complete and correct.
ASIA BROADCASTING AND
COMMUNICATIONS COMPANY, LTD.
Dated: April 11, 1997 By: /s/ CHRISTOPHER VIZAS
------------------------------------
Name: Christopher Vizas
----------------------------------
Title: Chief Executive Officer
---------------------------------
<PAGE> 8
APPENDIX 1
DIRECTORS AND EXECUTIVE OFFICERS OF
ASIA BROADCASTING AND COMMUNICATIONS NETWORK, LTD.
<TABLE>
<CAPTION>
NAME AND PRINCIPAL OCCUPATION BUSINESS ADDRESS
- ------------------------------ ----------------
<S> <C>
DIRECTORS:
- ---------
SONDHI LIMTHONGKUL
Chairman of the Board of Directors: Asia Broadcasting and Communications
Asia Broadcasting and Communications Network, Ltd.
Network, Ltd. 979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
Chairman of the Board of Directors
The M. Group Public Co., Ltd.
1041 3rd Floor
Phaholyothin Road
Phayathai, Bangkok 10400 Thailand
Chairman of the Board of Directors
Manager Media Group PLC
1041 3rd Floor
Phaholyothin Road
Phayathai, Bangkok 10400 Thailand
CHRISTOPHER VIZAS
Deputy Chairman of the Board of Directors Asia Broadcasting and Communications
Asia Broadcasting and Communications Network, Ltd.
Network, Ltd. 979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
Chief Executive Officer
Millennium Capital Development
1575 Eye Street. N.W., Suite 200
Washington, DC 20006
SURADET MUKYANGKOON
President Asia Broadcasting and Communications
Asia Broadcasting and Communications Network, Ltd.
Network, Ltd. 979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
President, Communications & Technology Group
The M. Group Public Co., Ltd.
1041 3rd Floor
Phaholyothin Road
Phayathai, Bangkok 10400 Thailand
</TABLE>
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<TABLE>
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President
The International Engineering Public
Company Ltd. (IEC)
979/81-95 Phaholyothin Road, Phayathai,
Bangkok 10400 Thailand
JRARAT PINGCLASAI
Chief Technical Officer Asia Broadcasting and Communications
Asia Broadcasting and Communications Network, Ltd.
Network, Ltd. 979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
POOSANA PREMANOCH
Chief Operating Officer Asia Broadcasting and Communications
United Communications Industry Public Network, Ltd.
Company Limited (UCOM) 979/81-95 Phaholyothin Road,
c/o Asia Broadcasting and Communications Phayathai, Bangkok 10400 Thailand
Network, Inc.
979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
Managing Director
Total Access Communications Public Company
Limited
c/o Asia Broadcasting and Communications
Network, Inc.
979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
CHAI-ANAN SAMUDAVANIJA
Chairman of the Board of Directors Asia Broadcasting and Communications
The International Engineering Public Company Network, Ltd.
Limited (IEC) 979/81-95 Phaholyothin Road,
979/81-95 Phaholyothin Road, Phayathai, Phayathai, Bangkok 10400 Thailand
Bangkok 10400 Thailand
APILAS OSATANONDA
Director Asia Broadcasting and Communications
Asia Broadcasting and Communications Network, Ltd.
Network, Ltd. 979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
Advisor
The M. Group Public Co., Ltd.
1041 3rd Floor
Phaholyothin Road
Phayathai, Bangkok 10400 Thailand
</TABLE>
<PAGE> 10
<TABLE>
<S> <C>
LAURIER J. BOISVERT
President and Chief Executive Officer Asia Broadcasting and Communications
Telesat Canada Network, Ltd.
1601 Telesat Court 979/81-95 Phaholyothin Road,
Gloucester, Ontario Phayathai, Bangkok 10400 Thailand
K1B 5P4 Canada
MICHAEL B. TARGOFF
President and Chief Operating Officer Asia Broadcasting and Communications
Loral Space and Communications Ltd. Network, Ltd.
600 Third Avenue, 36th Floor 979/81-95 Phaholyothin Road,
New York, NY 10016 Phayathai, Bangkok 10400 Thailand
SHOGO HOMMA
Executive Managing Director and Asia Broadcasting and Communications
Division President of the Aerospace and Network, Ltd.
Electronics Group 979/81-95 Phaholyothin Road,
Itochu Corporation Phayathai, Bangkok 10400 Thailand
5-1, Kita-Aoyama 2-Chome
Minato-Ku, Tokyo 107-77
Japan
VIJAYA BHASKAR MENON
Chairman Asia Broadcasting and Communications
International Media Investments Network, Ltd.
9777 Wilshire Blvd. 979/81-95 Phaholyothin Road,
Suite 904 Phayathai, Bangkok 10400 Thailand
Beverly Hills, CA 90212
EXECUTIVE OFFICERS WHO ARE NOT DIRECTORS:
- ----------------------------------------
CHET CHETSANDTIKHUN
Vice President, Business Development Asia Broadcasting and Communications
Network, Ltd.
979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
WANEE THEANTHANOO
Senior Vice President, Finance and Asia Broadcasting and Communications
Treasurer Network, Ltd.
979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
VORATEP CHOTINUCHIT
General Counsel and Secretary Asia Broadcasting and Communications
Network, Ltd.
979/81-95 Phaholyothin Road,
Phayathai, Bangkok 10400 Thailand
</TABLE>
<PAGE> 1
EXHIBIT 2
STOCK PLEDGE AGREEMENT
DATED AS OF APRIL 4, 1997
BY AND AMONG
ASIA BROADCASTING AND COMMUNICATIONS NETWORK, LTD.
AND
CREDIT AGRICOLE LAZARD FINANCIAL PRODUCTS BANK
<PAGE> 2
PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT (this "Agreement"), dated as of
April 4, 1997, between ASIA BROADCASTING AND COMMUNICATIONS NETWORK, LTD., a
Bermuda corporation (the "Pledgor"), and CREDIT AGRICOLE LAZARD FINANCIAL
PRODUCTS BANK (the "Secured Party").
WHEREAS, the Secured Party and the Pledgor have entered into a
Loan Agreement, dated as of April 4, 1997 (together with the Promissory Note
attached thereto, the "Loan Agreement"), pursuant to which the Secured Party
will make the Loan (as defined in the Loan Agreement) to the Pledgor;
WHEREAS, the Secured Party and the Pledgor have agreed that
the Pledgor shall secure certain of its obligations to the Secured Party under
the Loan Agreement (the "Loan Obligations"), in accordance with the terms of
this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Certain Definitions. Unless otherwise defined
herein, terms defined in the Loan Agreement shall have such defined meanings
when used herein. As used in this Agreement, the following terms shall have
the following meanings:
"Business Day" means a day on which commercial banks in The
City of London, United Kingdom are open for business (including dealings in
foreign exchange and foreign currency deposits).
"Code" means the U.S. Bankruptcy Code.
"Collateral" means (i) the Shares and (ii) any and all other
property which is now or hereafter in the possession of the Secured Party (or
an agent on behalf of the Secured Party), together with all additions and
accessions thereto, and all collections, income, distributions, investments and
claims in respect thereof, and all substitutions therefor, and all proceeds of
any of the foregoing.
"Collateral Default" has the meaning specified in Section 3
below.
"Collateral Deficiency" has the meaning specified in Section 3
below.
"Collateral Excess" has the meaning specified in Section 3
below.
"Collateral Value" means (i) in the case of Collateral
consisting of cash, the amount thereof, (ii) in the case of Collateral
consisting of Shares, the Share Value (as defined below) and (iii) in the case
of other Collateral, the market value thereof as determined by Secured Party in
a commercially reasonable manner.
"DTC" means The Depository Trust Company, a registered
clearing agency.
<PAGE> 3
"Distribution Default" has the meaning specified in Section 7
below.
"Event of Default" means (i) any event defined as an Event of
Default under the Loan Agreement, (ii) a Collateral Default or (iii) a
Distribution Default.
"First Refusal Agreement" means the First Refusal Agreement,
dated as of April 4, 1997, between the Pledgor and the Secured Party.
"Guarantee" means the Guarantee, dated as of March 25, 1997,
from the Guarantor (as defined below) to the Secured Party, as the same may be
amended from time to time.
"Guarantor" means The M. Group Public Company Limited, a Thai
company.
"Issuer" means Osicom Technologies, Inc., a New Jersey
corporation.
"Loan Amount" means $3,000,000.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as
amended.
"NYUCC" means the Uniform Commercial Code as in effect in the
State of New York, as the same may be amended from time to time.
"Registration Rights Assignment Agreement" means the
Registration Rights Assignment and Indemnification Agreement, dated as of April
4, 1997, among the Issuer, the Pledgor and the Secured Party.
"Rule 144" means Rule 144 promulgated under the 1933 Act.
"Rule 145" means Rule 145 promulgated under the 1933 Act.
"Secured Obligations" means the (i) the Loan Obligations, (ii)
the obligations of the Pledgor under the First Refusal Agreement and (iii) the
obligations of the Pledgor hereunder.
"SEC" means the Securities and Exchange Commission.
"Share Purchase Agreement" means the Share Purchase Agreement,
dated as of March 20, 1997, between the Pledgor and the Issuer.
"Shares" means 674,419 shares of common stock of the Issuer
pledged hereunder.
"Share Value" means the value of the Shares on the principal
market therefor; provided, however, that in the event Secured Party reasonably
determines that, due to the occurrence of an extraordinary event with respect
to the Pledgor, such market value is not representative of the value of the
Shares, the Secured Party may determine the value of the Shares
2
<PAGE> 4
in any commercially reasonable; provided, further, however, that the Secured
Party shall promptly provide the Pledgor notice of its intention to make such a
valuation.
2. Pledge; Continuing Security Interest. (a) The
Pledgor hereby grants to the Secured Party a continuing, first-priority
perfected security interest in any and all Collateral, as security for the
prompt and complete payment and performance when due (whether on the scheduled
date for repayment of the Loan or otherwise under the Loan Agreement) of the
Secured Obligations until fully paid and performed.
(b) This Agreement constitutes, among other things, a
security agreement under Articles 8 and 9 of the NYUCC with respect to
the Collateral.
3. Collateral. (a) On the date of the making of the
Loan, the Pledgor shall pledge and transfer the Collateral to the Secured
Party.
(b) (i) If at any time, the Collateral Value shall be
less than 150% of the Loan Amount and accrued interest thereon (a
"Collateral Deficiency"), the Secured Party may, by notice to the
Pledgor, require the Pledgor (i) to transfer and pledge to the Secured
Party additional Collateral reasonably satisfactory to the Secured
Party or, at the option of the Pledgor, pay a portion of the Loan
Amount, in either case in an amount sufficient to cure such Collateral
Deficiency.
(ii) Unless such Collateral Deficiency is cured
within five Business Days of notice to Pledgor, a "Collateral Default"
shall exist hereunder.
(c) If at any time, the Collateral Value shall be greater
than 150% of the Loan Amount and accrued interest thereon (a
"Collateral Excess"), the Pledgor may, by notice to the Secured Party,
require the Secured Party to return Collateral in an amount sufficient
to eliminate such Collateral Excess.
(d) All transfers of funds (if any) hereunder shall be in
United States dollars and in immediately available funds.
4. Taxes. Notwithstanding anything to the contrary
elsewhere in this Agreement, the First Refusal Agreement or the Loan Agreement,
all payments and all deliveries of Collateral pursuant to this Agreement shall
be made and the value of any Collateral shall be calculated net of any and all
present or future taxes, levies, imposts, duties, charges, assessments or fees
of any nature (including interest, penalties and additions thereto) that are
imposed by any government or other taxing authority in respect thereof.
5. Representations. The Pledgor represents, as of the
date of the making of the Loan and as of the date of any pledge and transfer of
the Collateral to the Secured Party, that:
(a) The Pledgor is the sole holder of record and owner of
all Collateral, subject to no adverse claim (including any lien,
encumbrance, option or claim of legal or beneficial ownership), except
the lien and security interest in favor of the Secured Party.
3
<PAGE> 5
(b) The Pledgor has full power, authority and legal right
to pledge the Collateral hereunder.
(c) (i) This Agreement has been duly executed and
delivered by the Pledgor and constitutes the legal, valid, binding and
enforceable obligation of the Pledgor, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity.
(ii) The Share Purchase Agreement has been duly
executed and delivered by each of the Issuer and the Pledgor and
constitutes the legal, valid, binding and enforceable obligation of
each of the Issuer and the Pledgor, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
to general principles of equity.
(iii) The Registration Rights Assignment Agreement
has been duly executed and delivered by each of the Issuer and the
Pledgor and constitutes the legal, valid, binding and enforceable
obligation of each of the Issuer and the Pledgor, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity.
(iv) The First Refusal Agreement has been duly
executed and delivered by the Pledgor and constitutes the legal,
valid, binding and enforceable obligation of the Pledgor, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditor's rights and to general principal of equity.
(v) The Guarantee has been duly executed and
delivered by the Guarantor and constitutes the legal, valid, binding
and enforceable obligation of the Guarantor, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights
generally and to general principles of equity.
(d) No consent, approval, authorization or other order
of, or filing with, any person or entity, governmental or otherwise,
is required for (i) the execution and delivery of this Agreement by
the Pledgor or the delivery by the Pledgor of the Collateral to the
Secured Party as provided herein or (ii) except as may be required
under applicable securities laws for a public sale of the Shares, the
exercise by the Secured Party of the rights and remedies provided for
in this Agreement.
(e) Upon (i) the delivery of the certificates
representing the Shares, together with proper instruments of
assignment duly executed in favor of the Secured Party or in blank or
(ii) the making of an appropriate debit to an account maintained by or
on behalf of the Pledgor at DTC and the making of an appropriate
credit to an account maintained by or on behalf of the Secured Party
at DTC, the Secured Party will have a valid and perfected security
interest in the Collateral, subject to no prior lien or security
interest.
(f) The Pledgor is not in possession of any material
nonpublic information concerning the Issuer.
4
<PAGE> 6
(g) The Share Purchase Agreement is in full force and
effect.
(h) The Pledgor has heretofore furnished the Secured
Party with true and complete copies of the Share Purchase Agreement
and the Registration Rights Assignment Agreement, which are in full
force and effect.
(i) The Guarantee is in full force and effect.
(j) The First Refusal Agreement is in full force and
effect.
(k) The Pledgor has heretofore furnished the Secured
Party with true and complete copies of all filings (if any) made by
the Pledgor with the SEC with respect to the Shares (including,
without limitation, Schedules 13D and 13G and Forms 3, 4 and 5).
(l) There is not pending or, to its knowledge, threatened
against the Pledgor, any action, suit or proceeding before any court,
tribunal, governmental body, agency or official or any arbitrator that
could be reasonably expected to affect the legality, validity or
enforceability against the Pledgor of this Agreement or the Pledgor's
ability to perform its obligations under this Agreement.
6. Covenants of the Pledgor. The Pledgor covenants at
all times that:
(a) The Pledgor will not, without the prior written
consent of the Secured Party, sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the
Collateral.
(b) The Pledgor will not create, incur or permit to exist
any pledge, lien, claim, mortgage, hypothecation, security interest,
charge, option or any other encumbrance with respect to any of the
Collateral, or any interest therein, or any proceeds thereof, except
for the lien and security interest provided for by this Agreement.
(c) The Pledgor will defend the Collateral against the
claims and demands of all parties, other than the Secured Party.
(d) The Pledgor will maintain the First Refusal
Agreement, the Share Purchase Agreement and the Registration Rights
Assignment Agreement in full force and effect, and will not hereafter
consent to any amendment or other modification thereof.
(e) The Pledgor will use its best efforts to cause the
Registration Statement on Form S-3 with respect to the Shares (the
"Registration Statement") promptly to be filed with the SEC, and to
cause such Registration Statement to become effective and thereafter
to remain in effect.
7. Rights of the Pledgor. Unless an Event of Default or any
event which, with the giving of notice or passage of time or both, would
constitute an Event of Default has occurred and is continuing:
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<PAGE> 7
(a) The Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Collateral or any
part thereof for any purpose not inconsistent with the terms of this
Agreement or the Loan Agreement; provided, however, that the Pledgor
shall not exercise or refrain from exercising such right if, in the
judgment of the Secured Party, such action would have a material
adverse effect on the value of the Shares; and provided, further, that
the Pledgor shall give the Secured Party at least two Business Days'
prior written notice of the manner in which it intends to exercise, or
the reasons for refraining from exercising, any such right.
(b) The Pledgor shall be entitled, from time to time, to
collect and receive for its own use all cash dividends (except cash
dividends paid or payable in respect of the total or partial
liquidation of the Issuer or other extraordinary dividends) paid on
the Collateral; provided, however, that until actually paid, all
rights to such dividends shall remain subject to this Agreement. All
dividends (other than cash dividends governed by the immediately
preceding sentence) and all other distributions in respect of any of
the Collateral, whenever paid or made, shall, if paid or made to the
Pledgor,be held in trust by the Pledgor, and shall be delivered as
promptly as possible to the Secured Party and held by it subject to
this Agreement.
(c) Unless the distributions referred to in Section 7(b)
are delivered to the Secured Party within five Business Days, a
"Distribution Default" shall exist hereunder.
(d) Except as expressly provided to the contrary in
Section 7(d) below, the Pledgor may not substitute Collateral, except
with the consent of the Secured Party, which consent may be granted or
withheld in the Secured Party's absolute discretion.
(e) Subject to the consent of the Secured Party, which
consent shall not be unreasonably withheld, and subject further to
Section 7(f) below, the Pledgor may require that the Shares, or part
of the Shares, be sold, as long as the proceeds of such sale are
immediately and directly wired to the Secured Party to be held as
Collateral hereunder; provided, however, that if the proceeds of all
sales thereof held by the Secured Party equal or exceed, in the
aggregate the Loan Amount plus accrued interest,the remaining Shares
(other than Shares subject to the Option Entitlement) shall be
released from the security interest of the Bank and shall cease to be
Collateral.
(f) Any sale described in Section 7(e) shall be conducted
exclusively at the direction of the Secured Party the Pledgor hereby
appointing the Secured Party as its agent and attorney-in-fact for
this purpose; such appointment is coupled with an interest and is
irrevocable.
8. Care of Collateral; Setoff. (a) (i) The Secured
Party shall exercise reasonable care in the custody and preservation of the
Collateral to the extent required by applicable law and in any event shall be
deemed to have exercised reasonable care if it (1) takes such action for that
purpose as the Pledgor shall request in writing (but no omission to comply with
any request of the Pledgor shall of itself be deemed a failure to exercise
6
<PAGE> 8
reasonable care) or (2)exercises at least the same degree of care as it would
exercise with respect to its own property.
(ii) Except as provided to the contrary in clause
(i) above, the Secured Party shall not be required to take any steps
to preserve any rights in the Collateral against third parties.
(b) Regardless of the adequacy of the Collateral, and any
other security for the Secured Obligations, any deposits or other sums
credited by or due the Pledgor from the Secured Party, or any
affiliate, branch or office of the Secured Party, may at any time be
applied to or set off against any of the Secured Obligations.
9. Remedies. (a) If an Event of Default has occurred
and is continuing, the Secured Party shall be entitled forthwith, at its
election, (i) to transfer and register in its or its nominee's name the whole
or any part of the Collateral not previously so transferred or registered, (ii)
to exercise all rights with respect to the Collateral, (iii) to demand, sue
for, collect, receive and give acquittance for any and all cash dividends or
other distributions or monies due or to become due upon or by virtue thereof,
and to settle, prosecute or defend any action or proceeding with respect
thereto, (iv) to sell in one or more sales the whole or any part of the
Collateral or otherwise to transfer or assign the same, applying the proceeds
therefrom to the payment of the Secured Obligations in such order as the
Secured Party shall determine and (v) otherwise to act with respect to the
Collateral or the proceeds thereof as though the Secured Party were the
outright owner thereof.
(b) Except for Collateral that is perishable or threatens
to decline speedily in value or is of a type customarily sold on a
recognized market, the Secured Party shall give the Pledgor not less
than ten days' prior written notice of the time and place of any sale
or other intended disposition of any of the Collateral. The Pledgor
agrees that such notice constitutes "reasonable notification" within
the meaning of Section 9-504(3) of the NYUCC. Any sale shall be made
at a public or private sale at the Secured Party's place of business,
or at any public building in the City of London or the City of New
York (or elsewhere in the Secured Party's absolute discretion) to be
named in the notice of sale, either for cash or upon credit or for
future delivery on such terms and at such price as the Secured Party
may deem fair, and, to the extent permitted by applicable law, the
Secured Party may be the purchaser of the whole or any part of the
Collateral so sold and hold the same thereafter in its own right free
from any claim of the Pledgor or any right or equity of redemption,
which right or equity is hereby waived and released. The Secured
Party reserves the right to reject any and all bids at such sale
which, in its sole discretion, it shall deem inadequate. Except as
otherwise herein specifically provided for, demands of performance,
notices of sale, advertisements and the presence of property at sale
are hereby waived and any sale hereunder may be conducted by an
auctioneer or any officer or agent of the Secured Party. The Secured
Party may, without notice or publication, adjourn any such sale or
cause the same to be adjourned by announcement at the proposed sale,
and such sale may be made at any time or place to which the same may
be so adjourned.
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<PAGE> 9
(c) The Secured Party shall apply the Collateral or the
net proceeds of any such collection, exercise or sale, after deducting
all reasonable costs and expenses incurred therein, including
reasonable attorneys' fees and legal expenses, to the payment in whole
or in part of the Secured Obligations in such order as the Secured
Party shall determine in the exercise of its sole discretion. After
applying the net proceeds as set forth in the preceding sentence, the
Secured Party shall deliver the surplus, if any, of such net proceeds
to the Pledgor or to whomsoever shall be entitled thereto.
(d) In addition to the rights and remedies granted to it
in this Agreement or under any other instrument or agreement securing,
evidencing or relating to any of the Secured Obligations (including,
without limitation, the First Refusal Agreement, the Guarantee and the
Loan Agreement), the Secured Party shall have all the rights and
remedies of a secured party under the NYUCC. The Pledgor shall be
liable for the deficiency if the proceeds of any sale or other
disposition of the Collateral are insufficient to pay all amounts to
which the Secured Party is entitled.
(e) If the Secured Party shall determine to exercise its
right to sell or cause the sale of any and all of the Collateral
pursuant to this Section 9, the Pledgor will do or cause to be done
all such other acts and things as may be necessary to make such sale
or sales of any portion or all of the Collateral valid and binding and
in compliance with any and all applicable laws and regulations.
(f) Without limitation on Section 9(c), the Pledgor shall
be liable to the Secured Party for all costs and expenses (including
without limitation reasonable legal fees) incurred in connection with
the enforcement of its rights and remedies hereunder, and such costs
and expenses shall be Secured Obligations.
(g) (i) If the Secured Party wishes to sell all or
any Shares pursuant to this Section 9, and determines, in its sole and
absolute discretion, that it is necessary or advisable to effect a
public registration of all or any of the Shares pursuant to the 1933
Act (or any similar statutes then in effect), and such registration
(or other qualification as referred to below) is for any reason not in
effect, then the Pledgor will, at its own expense:
(A) execute and deliver, and use its best efforts
to cause the Issuer (and the Issuer's directors and officers)
to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts and things as
may, in the reasonable judgment of the Secured Party, be
necessary or advisable to register the Shares under the 1933
Act and to cause the related registration statement to become
effective and to remain effective for such period as may be
required by law, and to make all amendments thereto and/or to
the related prospectus that, in the reasonable judgment of the
Secured Party, are necessary or advisable, all in conformity
with the 1933 Act and the rules and regulations promulgated
thereunder;
(B) use its best efforts to (1) qualify such
Shares under, and cause the Issuer to comply with, the
provisions of the securities or "Blue Sky" laws of any
8
<PAGE> 10
jurisdiction designated by the Secured Party and (2) cause the
Issuer to make available to its security holders, as soon as
practicable, an earnings statement that will satisfy the
provisions of Section 11(a) of the 1933 Act; and
(C) otherwise take such action as the Secured
Party shall request to enable the Secured Party to exercise
the rights of the Pledgor under the Share Purchase Agreement.
(ii) Notwithstanding anything in Section 9(g)(i)
to the contrary, the Secured Party may, in its sole and absolute
discretion (subject only to applicable requirements of law and the
other requirements of this Section 9), sell all or any of the Shares
by private sale in such manner and under such circumstances as the
Secured Party may deem necessary or advisable and notwithstanding that
a registration statement for all or any of such Shares could be or
shall have been filed under the 1933 Act. Without limitation on the
foregoing, the Secured Party may approach and negotiate with a single
possible purchaser to effect such sale and/or require that any such
sale (including one held by auction) be subject to restrictions as to
(A) the financial sophistication and ability of any person permitted
to bid or purchase at such sale, (B) the content of legends to be
placed upon any certificates representing the Shares sold in such
sale, including restrictions on future transfer thereof,(C) the
representations to be made by each person bidding or purchasing at
such sale relating to that person's access to financial information
about the Pledgor, the Issuer or the Secured Party, and such person's
intentions as to the holding of the Shares so sold for investment, for
its own account, and not with a view to the distribution thereof, and
(D) such other matters as the Secured Party may deem necessary or
advisable in order that such sale, notwithstanding any failure so to
register, may be effected in compliance with the Uniform Commercial
Code as in effect in any relevant jurisdiction and other laws
affecting the enforcement of creditors' rights, the 1933 Act and all
applicable state securities laws.
(h) The Pledgor will execute and deliver such
documents and take such other action as the Secured Party may deem
necessary or advisable in order that any sale under this Section 9 may
be made in compliance with the law.
(i) The Pledgor acknowledges that: (i) any sale in
accordance with this Section 9 shall be deemed to have been held in
a commercially reasonable manner; (ii) notwithstanding the legal
availability of a private sale or a sale subject to restrictions as
described above, the Secured Party may, in its sole and absolute
discretion, elect to seek registration of the Shares under the 1933 Act
or any applicable state securities laws in accordance with this Section
9; (iii) the Secured Party shall incur no responsibility or liability
for selling all or any of the Shares under this Section 9 at a price
which the Secured Party may deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might
be realized if such sale were deferred until after registration as
aforesaid; and (iv) any sale of all or any of the Shares which has not
been registered as aforesaid may be for a price less than that which
might have been obtained had the Shares been so registered.
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<PAGE> 11
(j) The Pledgor agrees to indemnify and hold harmless
the Secured Party and each person who controls the Secured Party within
the meaning of either the 1933 Act or the 1934 Act (or any similar
statutes then in effect), against any and all losses, claims, damages
or liabilities, joint or several, to which the Secured Party or such
person may become subject under the 1933 Act, the 1934 Act or other
Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
any registration statement for the registration of any of the Shares as
originally filed or in any amendment thereof, or in any preliminary
prospectus or the prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon 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, and agrees
to reimburse each such indemnified party promptly for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action.
10. Performance by the Secured Party; Further Assurances.
(a) The Pledgor hereby irrevocably appoints the Secured Party as the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, to take any action and execute any
instrument which the Secured Party may deem necessary or advisable to
accomplish the purposes of this Agreement(and such appointment as
attorney-in-fact, being coupled with an interest, shall be irrevocable). The
Pledgor agrees that if it fails to perform any agreement herein, the Secured
Party may, in its sole discretion and at the Pledgor's expense, perform or
cause the performance of such agreement.
(b) The Pledgor agrees that at any time and from time to
time upon the written request of the Secured Party, it will, at its
expense, do all such acts and file, record, make, execute and deliver
all such notices, instruments, statements or other documents as the
Secured Party may reasonably request to register the Collateral in the
name of the Secured Party, or to perfect, preserve or otherwise protect
the security interest of the Secured Party in the Collateral or any
other interest therein, or to give effect to the rights, powers and
remedies of the Secured Party hereunder, including but not limited to
the execution and filing of financing statements and continuation
statements on the proper forms as prescribed by applicable law.
11. Lazard Disclaimer.The Pledgor is hereby notified
that and acknowledges that none of Lazard Freres et Cie, Lazard Freres & Co.,
LLC, Lazard Brothers & Co. Limited or any of their partners, officers, employees
or any of their subsidiaries or associates have any responsibility of any kind
for any of the debts, liabilities or other obligations of the Secured Party, or
to ensure its solvency or to make any contribution to its assets as a result of
its becoming insolvent, notwithstanding their interests in its shares,
representation on its board and its rights to use the Lazard name.
12. Termination of Security Interest. Upon the
termination of the Loan Agreement and the payment and performance in full of
all Secured Obligations with respect
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<PAGE> 12
thereto, the Collateral shall be released from the security interest of the
Secured Party provided for herein, and this Agreement shall terminate.
13. Waiver By The Pledgor. The Pledgor waives
presentment, notice, protest, notice of acceptance of this Agreement, notice of
any loans made, extensions granted, Collateral received or delivered, or any
other action taken in reliance thereon, all demands and, except as expressly
provided to the contrary in Section 9 above, all notices in connection with the
delivery, acceptance, performance, default, or enforcement of any note or other
evidence of indebtedness for which any of the Collateral is pledged and all
other demands and notices of any description, and assents to any extension or
postponement of the time of payment or any other indulgence and to the addition
or release of any party or person primarily or secondarily liable.
14. No Waiver of Rights;Remedies Cumulative. No failure
or delay in exercising any right, power or privilege in respect of this
Agreement will be presumed to operate as a waiver, and a single or partial
exercise of any right, power or privilege will not be presumed to preclude any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege. Except as provided in this
Agreement, the rights, powers, remedies and privileges provided in this
Agreement are cumulative and not exclusive of any rights, powers, remedies and
privileges provided by law.
15. Transfer; Amendments; Applicable Law. (a) Neither
this Agreement, nor any interest or obligation in or under this Agreement, may
be transferred by the Pledgor without the prior written consent of the Secured
Party and any purported transfer without such consent will be void for all
purposes. The Secured Party may transfer this Agreement, or any interest
herein,to Caisse Nationale de Credit Agricole or any affiliate thereof.
(b) This Agreement and all obligations of each party
hereunder shall be binding upon the permitted successors and assigns
of such party, and shall, together with the rights and remedies of the
other party hereunder, inure to the benefit of such other party and
its respective permitted successors and assigns.
(c) No amendment, modification or waiver in respect of
this Agreement will be effective unless in writing (including a
writing evidenced by a facsimile transmission) and executed by each of
the parties or confirmed by an exchange of telexes.
(d) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE
TO CHOICE OF LAW RULES).
16. Notices. Any notice or other communication in
respect of this Agreement may be given in any manner permitted for notices or
other communications under the Loan Agreement and will be deemed effective as
provided in the Loan Agreement.
17. Counterparts. This Agreement (and each amendment,
modification and waiver in respect of it) may be executed and delivered in
counterparts (including by facsimile transmission), each of which will be
deemed an original document.
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18. Headings. The headings used in this Agreement are
for convenience of reference only and are not to affect the construction of or
betaken into consideration in interpreting this Agreement.
19. Agents. The Secured Party may execute any of its
duties hereunder by or through agents or employees. The Secured Party may
consult with legal counsel and any action taken or suffered in good faith in
accordance with the advice of such counsel shall be full justification and
protection to it.
20. No Liability. Neither the Secured Party nor any of
its officers,directors, employees, agents or counsel shall be liable for any
action lawfully taken or omitted to be taken by it or them hereunder or in
connection herewith, except for their own gross negligence or willful
misconduct, and the Secured Party shall not be liable for any error of judgment
made by it in good faith.
21. Jurisdiction. All judicial proceedings brought
against the Pledgor with respect to this Agreement may be brought in any state
or Federal court of competent jurisdiction in the City of New York. By
execution and delivery of this Agreement, the Pledgor accepts for itself and in
connection with its properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to
be bound by any judgment rendered thereby, subject to the right of appeal, in
connection with this Agreement. The Pledgor irrevocably waives any right it
may have to assert the doctrine of forum non conveniens or to object to venue
to the extent any proceeding is bought in accordance with this Section 21.
22. JURY WAIVER. THE SECURED PARTY AND THE PLEDGOR AGREE
THAT NEITHER OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A)SEEK A JURY TRIAL
IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER ACTION BASED UPON, OR
ARISING OUT OF, THIS AGREEMENT, ANY RELATED INSTRUMENTS, THE COLLATERAL OR THE
DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG ANY OF THEM, OR (B) SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT
BE OR HAS NOT BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH SHALL BE SUBJECT
TO NO EXCEPTIONS. NEITHER THE SECURED PARTY NOR THE PLEDGOR HAS AGREED WITH OR
REPRESENTED TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE
FULLY ENFORCED IN ALL INSTANCES. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND
THAT RELATE TO THE SUBJECT MATTER OF THE FOREGOING, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. THE SECURED PARTY AND THE PLEDGOR EACH
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. THE PLEDGOR FURTHER WARRANTS AND REPRESENTS THAT IT HAS
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<PAGE> 14
REVIEWED THIS WAIVER WITH LEGAL COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY
WAIVES JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE LOAN AGREEMENT, THE FIRST
REFUSAL AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
TRANSACTIONS CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
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<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have caused this Pledge and
Security Agreement to be executed and delivered as of the date first above
written.
CREDIT AGRICOLE LAZARD FINANCIAL
PRODUCTS BANK
By: /s/ Phillipe Magistretti
-----------------------------------
Name:
Title:
ASIA BROADCASTING AND
COMMUNICATIONS, LTD.
By: /s/ Christopher Vizas
-----------------------------------
Name: Christopher Vizas
Title: Chief Executive Officer
14
<PAGE> 1
EXHIBIT 3
REGISTRATION RIGHTS ASSIGNMENT
AND INDEMNIFICATION AGREEMENT
REGISTRATION RIGHTS ASSIGNMENT AND INDEMNIFICATION AGREEMENT
(this "Agreement"), dated as of April 4, 1997, among Osicom Technologies, Inc.,
a New Jersey corporation (the "Issuer"), Asia Broadcasting and Communications
Network, Ltd., a Bermuda corporation (the "Assignor"), and Credit Agricole
Lazard Financial Products Bank (the "Bank").
WHEREAS, the Assignor holds 674,419 shares of common stock of
the Issuer(the "Shares");
WHEREAS, the Bank and the Assignor have entered into a Loan
Agreement, dated as of April 4, 1997 (together with the Promissory Note
attached thereto, the "Loan Agreement"), pursuant to which the Lender will make
the Loan (as defined in the Loan Agreement) to the Assignor;
WHEREAS, the Assignor has granted a security interest in the
Shares in favor of the Bank pursuant to a Pledge and Security Agreement, dated
as of April 4, 1997, between the Bank and the Assignor, as security for the
obligations of the Assignor to the Bank (the "Pledge Agreement");
WHEREAS,the Issuer has granted to the Assignor certain
registration rights with respect to the Shares pursuant to the Share Purchase
Agreement, dated as of March 20, 1997, between the Issuer and the Assignor (the
"Share Purchase Agreement");
WHEREAS, in consideration of the Bank entering into the Loan
Agreement, the Assignor wishes to assign its rights in and to the Share
Purchase Agreement to the Bank; and
WHEREAS, the Issuer has agreed to such assignment, and to
cooperate with the Bank in the exercise by the Bank of its rights in connection
therewith.
NOW, THEREFORE, the parties hereto agree as follows:
1. Certain Definitions. Unless otherwise defined
herein, terms defined in the Pledge Agreement shall have such defined meanings
when used herein.
2. Assignment. Notwithstanding Section 9.1 of the Share
Purchase Agreement or anything else to the contrary therein, the Assignor
hereby transfers, sets over and assigns all of its right, title and interest in
and to the Share Purchase Agreement, including, without limitation on the
foregoing or on Section 4 below, all rights to indemnification and contribution
thereunder, to the Bank, and, without limitation on the foregoing, agrees that
the
<PAGE> 2
Bank may rely on and exercise all registration rights granted therein to the
Assignor with respect to the Shares.
3. Cooperation By Issuer. Notwithstanding Section 9.1
of the Share Purchase Agreement or anything else to the contrary therein, the
Issuer agrees to cooperate as reasonably requested by the Bank in connection
with the assignment made herein, including, without limitation, in the exercise
of remedial rights by the Bank with respect to the Shares pursuant to the
Pledge Agreement.
4. Indemnification and Contribution. (a) The Issuer
agrees to indemnify and hold harmless the Bank, the directors, officers,
employees and agents of the Bank and each person who controls the Bank within
the meaning of either the Securities Act of 1933 (the "1933 Act") or the
Securities Exchange Act of 1934 (the "1934 Act") against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the 1933 Act, the 1934 Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions or investigations or
proceedings commenced or threatened by any governmental agency or body in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement on
FormS-3 to be filed with the Securities and Exchange Commission with respect to
the Shares, or in any prospectus contained therein, or arise out of or are
based upon 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,and agrees to reimburse each such indemnified party,as incurred, for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending against any such action, investigation or
proceeding.
(b) Promptly after receipt by an indemnified party under
this Section 4 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the Issuer
under this Section 4, notify the Issuer in writing of the commencement thereof;
but the failure so to notify the Issuer (i) will not relieve it from liability
under paragraph (a) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the Issuer of
substantial rights and defenses and (ii) will not, in any event, relieve the
Issuer from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) above.
(c) The Issuer shall be entitled to appoint counsel of
its choice at its expense to represent the indemnified party in any action for
which indemnification is sought; provided, however, that such counsel shall be
satisfactory to the indemnified party.
5. No Waiver of Rights; Remedies Cumulative. No failure
or delay in exercising any right, power or privilege in respect of this
Agreement will be presumed to operate as a waiver, and a single or partial
exercise of any right, power or privilege will not be presumed to preclude any
subsequent or further exercise, of that right, power or privilege or the
exercise of any other right, power or privilege. The rights, powers, remedies
and privileges provided in this Agreement are cumulative and not exclusive of
any rights, powers, remedies and privileges provided by law.
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<PAGE> 3
6. Transfer; Amendments; Applicable Law. (a)
Neither this Agreement, nor any interest or obligation in or under this
Agreement, may be transferred by the Issuer or the Assignor, and any purported
transfer without the consent of the Bank will be void for all purposes.
(b) This Agreement and all obligations of each party
hereunder shall be binding upon the permitted successors and assigns
of such party, and shall, together with the rights and remedies of the
other party hereunder, inure to the benefit of such other party and its
respective permitted successors and assigns (which assigns, in the case
of the Bank, may include Caisse Nationale de Credit Agricole or any
affiliate thereof).
(c) No amendment, modification or waiver in respect of
this Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the
parties or confirmed by an exchange of telexes.
(d) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO CHOICE OF LAW RULES).
7. Lazard Disclaimer. The Issuer and the Assignor are
hereby notified that and acknowledge that none of Lazard Freres et Cie, Lazard
Freres & Co.,LLC, Lazard Brothers & Co. Limited or any of their partners,
officers, employees or any of their subsidiaries or associates have any
responsibility of any kind for any of the debts, liabilities or other
obligations of the Bank, or to ensure its solvency or to make any contribution
to its assets as a result of its becoming insolvent, notwithstanding their
interests in its shares, representation on its board and rights to use the
Lazard name.
8. Notices. Any notice or other communication in
respect of this Agreement shall be in writing, and shall be deemed to have
been validly served, given or delivered upon receipt after transmittal by hand
or by Federal Express or similar service providing confirmation of delivery, or
five Business Days after deposit in the United States mails, registered first
class mail, with proper postage prepaid, and addressed to the party to be
notified at the following addresses (or such other address as such party shall
designate in a notice delivered to the other party hereunder):
if to the Bank, at: Credit Agricole Lazard
Financial Products Bank
135 Fleet Street
London EC4A 2ED
United Kingdom
Attn: Patrick Palmer
if to the Issuer, at: Osicom Technologies, Inc.,
2800 28th Street
Santa Monica, CA 90405
Attn: Par Chadha
3
<PAGE> 4
if to the Assignor, at: Asia Broadcasting and
Communications Network, Ltd.
979/81-95 Phaholyohin Road,
Phyathal, Bangkok 10400
Thailand
Attn: Vorathep Chotinuchit
9. Counterparts. This Agreement (and each amendment,
modification and waiver in respect of it) may be executed and delivered in
counterparts (including by facsimile transmission), each of which will be
deemed an original document.
10. Headings. The headings used in this Agreement are
for convenience of reference only and are not to affect the construction of or
be taken into consideration in interpreting this Agreement.
11. Agents. The Bank may execute any of its duties
hereunder by or through agents or employees. The Bank may consult with legal
counsel and any action taken or suffered in good faith in accordance with the
advice of such counsel shall be full justification and protection to it.
12. Jurisdiction. All judicial proceedings brought
against the Assignor or the Issuer with respect to this Agreement may be
brought in any state or Federal court of competent jurisdiction in the City of
New York in the State of New York. By execution and delivery of this
Agreement, the Issuer and the Assignor each accepts for itself, and in
connection with its respective properties, generally and unconditionally, the
non-exclusive jurisdiction of the aforesaid courts, and irrevocably agrees to
be bound by any judgment rendered thereby, subject to the right of appeal. The
Issuer and the Assignor each irrevocably waives any right it may have to assert
the doctrine of forum non conveniens or to object to venue to the extent any
proceeding is bought in accordance with this Section 12.
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<PAGE> 5
IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Assignment and Indemnification Agreement to be executed and
delivered as of the date first above written.
CREDIT AGRICOLE LAZARD FINANCIAL
PRODUCTS BANK
By: /s/ Phillipe Magistretti
-----------------------------------
Name: Phillipe Magistretti
Title:
OSICOM TECHNOLOGIES, INC.
By: /s/ Barry Witz
-----------------------------------
Name: Barry Witz
Title: Director
ASIA BROADCASTING AND
COMMUNICATIONS, LTD.
By: /s/ Christopher Vizas
-----------------------------------
Name: Christopher Vizas
Title: Chief Executive Officer
5
