<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.
Date of Report (Date of earliest event reported): December 12, 1997.
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-22046 38-3114641
(State or other (Commission File (I.R.S. Employer
jurisdiction of Number) Identification No.)
incorporation)
50 Spring Street, Ramsey, New Jersey 07446
(Address of principal executive offices) (Zip Code)
(201) 934-8500
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report.)
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Item 4. Changes in Registrant's Certifying Accountant.
On December 12, 1997, Bogen Communications International, Inc. (the
"Company") retained KPMG Peat Marwick LLP ("KPMG") to serve as its independent
accountant for the fiscal year ending December 31, 1997. KPMG will replace
Coopers & Lybrand L.L.P. ("Coopers & Lybrand") who was dismissed on December 12,
1997.
The dismissal of Coopers & Lybrand was approved by the Company's board
of directors. Coopers & Lybrand's report on the financial statements of the
Company for the fiscal years ended December 31, 1996 and 1995 did not contain
any adverse opinion or disclaimer of opinion and was not qualified or modified
as to uncertainty, audit scope, or accounting principles. In connection with the
audit of the Company's financial statements for the years ended December 31,
1996 and 1995, and through the subsequent interim period through December 12,
1997 (the date of dismissal), there has not been a disagreement with Coopers &
Lybrand on any matter of accounting principle or practice, financial statement
disclosure, or audit scope or procedure, which disagreement, if not resolved to
the satisfaction of Coopers & Lybrand, would have caused it to make reference to
the subject matter of the disagreement in connection with its report. In
addition, there has not been a reportable event as described in paragraph
(a)(1)(v) of Item 304 of Regulation S-K, promulgated under the Securities Act of
1934, as amended.
The Company has requested Coopers & Lybrand to furnish the Company with
a letter addressed to the Securities and Exchange Commission stating whether
Coopers & Lybrand agrees with the above statements. A copy of the letter will be
filed with the Securities and Exchange Commission as an amendment to this
Current Report on Form 8-K within 10 business days of this filing.
Item 5. Other Events.
Effective November 28, 1997, the Company and Helix Capital Services,
LLC ("Helix Services") entered into an amendment (the "Amendment") to the
Mergers and Acquisition Engagement Agreement, dated August 1997 (the
"Agreement"), between Helix Services and the Company, which Amendment, among
other things, (1) requires Helix Services to relinquish its role as exclusive
financial adviser and finder for the Company's merger and acquisition
transactions and to forfeit certain fees in the event fees are payable to a
finder in connection with such transactions, (2) requires Helix Services to
provide additional time and resources in connection with performing its duties
under the Agreement, (3) increases the monthly fees payable to Helix Services by
$5,000 per month, and (4) extends the term of the Agreement to December 1, 2000.
A copy of the Agreement, as amended by the Amendment, is attached as Exhibit
10.1 hereto.
In connection with entering into the Amendment, Helix Capital II, LLC
("Helix II"), an affiliate of Helix Services, was provided with an opportunity
to invest in the Company. As of November 28, 1997, Helix II purchased a
non-transferable warrant (the "Warrant") to purchase 575,885 shares of the
Company's common stock, par value $.001 per share
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("Common Stock"), for a purchase price of $115,177. The exercise price of the
Warrant is $5.50 per share of Common Stock, or $0.875 above the closing price of
the Common Stock on the American Stock Exchange on the preceding trading day.
Subject to certain exceptions in the event of a change of control (as defined in
the Warrant), the Warrant will not be exercisable until the one year anniversary
of the date of issuance thereof, and the holder of the Warrant will have no
registration rights until after two years from the date of issuance of the
Warrant. A copy of the Warrant Purchase Agreement, dated as of November 28,
1997, between the Company and Helix II and the Warrant are attached as Exhibits
10.2 and 10.3 hereto, respectively.
Yoav Stern, the Co-Chairman of the Board of Company, and Zivi Nedivi, a
director of the Company, are principals of Helix Services and Helix II.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
Exhibit Number Description
10.1 Mergers and Acquisition Engagement Agreement, dated August,
1997, as amended as of November 28, 1997, between Helix
Capital Services, LLC and Bogen Communications International,
Inc.
10.2 Warrant Purchase Agreement, dated as of November 28, 1997,
between Helix Capital II, LLC and Bogen Communications
International, Inc.
10.3 Warrant, dated November 28, 1997, issued by Bogen
Communications International, Inc. to Helix Capital II, LLC.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
(Registrant)
/s/ Michael P. Fleischer
--------------------------------------------
Name: Michael P. Fleischer
Date: December 18, 1997 Title: President
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Index to Exhibits
Exhibit
Number Description
10.1 Mergers and Acquisition Engagement Agreement, dated August,
1997, as amended as of November 28, 1997, between Helix
Capital Services, LLC and Bogen Communications International,
Inc.
10.2 Warrant Purchase Agreement, dated as of November 28, 1997,
between Helix Capital II, LLC and Bogen Communications
International, Inc.
10.3 Warrant, dated November 28, 1997, issued by Bogen
Communications International, Inc. to Helix Capital II, LLC.
<PAGE> 1
EXHIBIT 10.1
MERGERS AND ACQUISITIONS ENGAGEMENT AGREEMENT
1. PROPOSED SERVICES
1.1. Helix Capital Services LLC ("Helix") will act as
Bogen Communications International, Inc. and all its
subsidiaries and affiliates ("Bogen" or "the
Company") exclusive mergers & acquisitions and
principal financial advisor and will assist the
Company in identifying, introducing, analyzing,
structuring, negotiating, and effecting the
Transactions (as defined below), including the
Proposed Transactions (as described in section 1.3)
on the terms and conditions of this Agreement set
forth below. In parallel with services relating to
the Proposed Transactions, Helix will assist and
consult with the Company on strategic financial and
operational issues and tactical implementation of
concepts relating to the growth of the Company.
1.2. Mr. Stern and Mr. Perry, principal of Helix, will
devote time, as needed from time to time, to
participate in meetings, lead strategic planning
sessions, initiate and help in recruiting key
personnel and advise management on operational issues
in growth and/or turn around situations.
1.3. PROPOSED TRANSACTION(S):
1.3.1. M&A TRANSACTION: As used herein, the term
"Transaction" shall mean any transaction or
series of transactions other than the
purchase or sale of assets in the ordinary
course of the Company's business, whereby,
directly or indirectly, the Company or any
of its businesses, assets or properties
acquires, is acquired by or is merged with
another entity, or any other similar
business transaction or arrangement between
the Company and a third party, including
without limitation, a merger, combination or
consolidation, regardless of the accounting
or tax treatment of such transaction.
1.3.2. OTHER TRANSACTIONS: As used herein, the term
"Transaction" shall also mean any
transaction or series of transactions (other
than senior debt financing, and transactions
with banking institutions arranged by the
Company's management in the ordinary course
of business), whereby, directly or
indirectly, the
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Company or any of its businesses receive
additional capital, debt financing or
markets additional equity other than through
a public offering. With regard to
Transactions described in this section
1.3.2, the Company's obligation to retain
Helix is subject and subordinate to existing
agreements with investment banking firms
relating to private debt or equity
financing. Moreover, the Company retains the
right to engage an investment banking firm
to assist it in arranging any such
transaction described in this section
1.3.2., provided that the Company will
notify Helix in writing 15 days in advance
regarding a proposed engagement with any
investment banking firm. No fee will be
payable to Helix as per section 2.3 with
regards to any Transaction arranged by any
such investment banking firm unless a
fee-sharing agreement is reached between
such firm, the Company, and Helix.
1.4. OTHER ACTIVITIES: Helix will undertake certain
activities on the Company's behalf, including, if
appropriate, the following:
1.4.1. Identifying and introducing acquisition
opportunities;
1.4.2. Assisting the Company in its determination
of appropriate values to be realized in
Transactions;
1.4.3. Advising the Company in the negotiations as
to the form and structure of Transactions;
1.4.4. Advising and assisting the Company's
management in making presentations to the
Company's Board of Directors about
Transactions;
1.4.5. In addition to advising on any Transactions,
rendering such other financial advisory and
merchant banking services as may from time
to time be agreed in writing between Helix
and the Company.
2. FURTHER AGREEMENT TERMS
2.1. TRANSACTION TIMING. A Transaction shall be deemed to
have occurred when Consideration Paid for a
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Transaction has been received by the Company or the
Company's shareholders or, in the event of a merger,
acquisition, purchase by the Company, Consideration
Paid has been sent to the receiving party, provided
that if, Consideration Paid shall be paid in
installments, the full amount will be construed to
have been received on the receipt of the first
installment exchanged between parties to a
Transaction.
2.2. LIMITATION AND EXCLUSIVITY. The Company agrees that
as of the date hereof, Helix shall be the exclusive
advisor to the Company with respect to transactions
pursuant to section 1.3.1 and the Company shall not
enter into any agreement relating to a Transaction
pursuant to section 1.3.1 during the term of this
Agreement without the participation of Helix. If the
Company consummates a Transaction pursuant to section
1.3.1 during the term of this Agreement (or for a
period of one year thereafter as described below)
without Helix's participation, the Company agrees
that it, and its successors and assigns, shall
nevertheless be obligated to provide or cause to be
provided to Helix, the compensation provided herein
in paragraph 2.3.
2.3. COMPENSATION. The Company will compensate Helix in
the form of a retainer, success fees and
reimbursement of its reasonable expenses as described
below. Fees will be paid directly to Helix or to
another entity as assigned from time to time by
Helix.
2.3.1. RETAINER: The Company will pay Helix a
monthly retainer in the amount of $15,000
for a minimum period of 18 months and
thereafter for the length of this Agreement
(see Termination in paragraph 2.8)
2.3.2. CONSIDERATION PAID: For the purpose of this
Agreement, Consideration Paid is defined as:
2.3.2.1. In the event of a sale by the
Company of newly issued securities,
the amount of cash invested in the
Company;
2.3.2.2. In the event of a sale, merger or
acquisition of the Company or the
Company's assets, the cash
consideration (including amounts
paid into escrow) plus the fair
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market value of non-cash
consideration paid by the acquirer,
plus the amount of debt and other
interest bearing obligations
assumed, refinanced, retired, or
defeased by the acquirer, less any
cash obtained by the acquirer upon
successful completion of the
Transaction;
2.3.2.3. In the event of a purchase, merger
or acquisition Transaction by the
Company, the cash consideration
(including amounts paid into
escrow) plus the fair market value
of non-cash consideration paid by
the company, plus the amount of
debt and other interest bearing
Obligations assumed or refinanced
by the Company, in connection with
the Transaction.
2.3.2.4. The fair market value of any
non-cash consideration delivered in
a Transaction will be the value
agreed upon by the Company and
Helix prior to the consummation of
the Transaction.
2.3.3. SUCCESS FEES:
2.3.3.1. For an M&A Transaction as defined
in section 1.3.1 the Company shall
pay Helix a success fee upon
closing of each Transaction.
Success fees for any Transaction as
defined above, will be determined
by mutual consent by Helix and the
Company based on market conditions
and on a per Transaction basis, but
in any case will be no less than 2%
of the Consideration Paid
transferred to or transferred from
the Company or the Company's
shareholders. Success fees shall be
due and payable if the Company
completes a Proposed Transaction
during the term of this Agreement
and within one year of the
termination of this Agreement with
a party introduced to Bogen or that
was in formal contact with Helix or
Bogen within the term of this
Agreement. This success fee will be
paid in cash, or in other
negotiable securities and financial
instruments as specifically agreed
in writing by
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Helix and the Company, but in any
case, if agreement is not reached,
success fee will be paid in same
consideration as paid or received
by the Company.
2.3.3.2. For any other Transaction as
defined in section 1.3.2, the
Company and Helix will reach an
agreement on a success fee for each
specific Transaction if and when
the Company instructs Helix to
proceed with preparation for a
specific Transaction.
2.3.4. EXPENSES: The Company shall reimburse Helix,
upon Helix's request and regardless of
whether the Company consummates any
Transactions, for its reasonable and actual
out of pocket expenses incurred by it in
connection with this Agreement. In no event,
however, shall the Company be liable to
Helix for out-of-pocket expenses in excess
of $7,500 per month without the prior
approval of the Company.
2.4. INFORMATION & RELIANCE: In connection with Helix's
engagement, the Company will furnish Helix with all
information concerning the Company which Helix and
the Company deem appropriate and will provide Helix
with necessary and reasonable access to the Company's
officers, directors, accountants and counsel. It is
understood that Helix will rely on the accuracy and
completeness of such information supplied by the
Company, its authorized officers and agents, or
available from generally recognized public sources,
without any independent investigation or verification
thereof.
2.5. CONFIDENTIALITY. During the term of this Agreement,
the Company, on the one hand, and Helix, on the other
hand, will have access to and become acquainted with
advice, data, materials, contacts or other
information provided by one party to the other,
including the existence of this Agreement
(collectively, the "Confidential Information"). Each
party hereto agrees to treat the Confidential
Information of the other party confidentially and
agree not to disclose Confidential Information to any
third party other than (i) to its employees,
attorneys, affiliates, representatives and agents to
whom disclosure is necessary in order to carry
<PAGE> 6
out the terms of the engagement, and (ii) if, in the
reasonable opinion of legal counsel, such disclosure
is legally required. Both parties shall take all
precautions reasonably necessary to maintain the
confidentiality of the Confidential Information of
the other party, it being understood, however, that a
copy of this Agreement may be filed with the U.S.
Securities and Exchange Commission and its terms be
described in the Company's public filings.
2.5.1. Notwithstanding the foregoing, the following
shall not be Confidential Information: (a)
information generally available to the
public, or which is published or becomes
public; (b) information which a party can
show was in its possession at the time of
disclosure and which was not acquired
directly or indirectly from the disclosing
party, and (c) information rightfully
acquired from others who did not obtain it
under a pledge of confidentiality to a party
hereto.
2.5.2. Each party hereto covenants and agrees that
it shall not misuse or misappropriate any of
the Confidential Information of the other
party. Each party acknowledges and agrees
that Confidential Information of each party
constitutes trade secrets and that the other
party will obtain no ownership interest
therein. Upon termination of Helix's
engagement with the Company, or whenever
requested by the other party, each of the
Company and Helix shall immediately deliver
to the other all property in its possession
or under its control belonging to the other
party or containing any Confidential
Information of the other party.
2.5.3. The parties acknowledge and agree that the
restrictions contained in this Agreement, in
view of the nature of the respective
businesses of the parties hereto, are
reasonable and necessary in order to protect
their legitimate interests and that any
violation thereof would result in
irreparable injuries to the other parties.
The parties agree that in addition to any
other rights or remedies which the other
party may be entitled to at law or in
equity, the
<PAGE> 7
other party shall be entitled to obtain
injunctive relief from any court of
competent jurisdiction and reimbursement of
any costs and expenses, including, without
limitation, attorneys' fees and expenses,
incurred in connection with the enforcement
of this Section 2.5.
2.6. INDEMNIFICATION. The Company agrees to indemnify and
hold Helix harmless from and against any and all
losses, claims, damages and liabilities (or actions
including security holder actions in respect thereof)
related to or arising out of Helix's engagement
hereunder or its role in connection herewith, and
will reimburse Helix for all reasonable expenses
(including reasonable counsel fees and expenses) as
they are incurred by Helix in connection with
investigating, preparing for or defending any such
action or claim, whether or not in connection with
pending or threatened litigation in which Helix is a
party and whether or not initiated by or on behalf of
the Company. The Company will not, however, be
responsible for any claims, liabilities, losses,
damages or expenses that have resulted from the
willful misconduct or gross negligence of Helix. The
Company also agrees that Helix shall not have any
liability to the Company for or in connection with
Helix's engagement, except for liability for losses,
claims, damages, liabilities or expenses incurred by
the Company that result from the willful misconduct
or gross negligence of Helix.
2.6.1. In the event that the foregoing indemnity is
unavailable, then the Company shall
contribute to amounts paid or payable by
Helix in respect of its losses, claims,
damages and liabilities:
2.6.1.1. in such proportion as appropriately
reflects the relative benefits
received by, the Company and Helix
in connection with the matters as
to which such losses, claims,
damages or liabilities relate, or
2.6.1.2. if (but only if) the allocation
provided for in 2.6.1.1 is for any
reason held to unenforceable, in
such proportion as is appropriate
to reflect not only the relative
benefits referred to in 2.6.1.1 but
also the relative fault of the
Company and Helix, as well as any
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other relevant equitable
considerations;
2.6.1.3. provided, however, that in no event
shall the amount to be contributed
by Helix exceed the amount of the
fee actually received by Helix. The
foregoing shall be in addition to
any rights that Helix may have at
common law or otherwise and shall
extend upon the same terms to and
inure to the benefit of Helix and
its affiliates and their respective
directors, officers, employees,
agents or controlling persons of
Helix.
2.6.1.4. The Company agrees that, without
Helix's prior written consent, it
will not settle, compromise or
consent to the entry of any
judgment in any pending or
threatened claim, action, or
proceeding in respect of which
indemnification could be sought
under the indemnification
provisions of this Agreement
(whether or not Helix or any other
party is an actual or potential
party to such claim, action or
proceeding), unless such
settlement, compromise or consent
includes an unconditional release
of each indemnified party from all
liability arising out of such
claim, action or proceeding.
2.7. LIMITED COMMITMENT. It is understood that Helix makes
no commitment to raise capital and/ or effect any of
the Proposed Transactions. In addition, the Company
has the right not to accept any or all offers with
respect to the Proposed Transactions.
2.8. TERM AND TERMINATION. This Agreement shall have an
initial term of 18 months from July 1, 1997, and may
be renewed by mutual consent of both parties.
Notwithstanding the foregoing, the provisions of
paragraphs 2.3, 2.5, 2.6 and 2.8 will survive any
termination.
2.9. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the
State of New Jersey and the federal laws of the
United States of America applicable therein. Any
controversy or claim arising out of or relating to
this letter agreement, other than as provided for
<PAGE> 9
in section 2.5 herein, shall be settled by
arbitration in accordance with the rules of the
American Arbitration Association, and judgment upon
an award arising in connection therewith may be
entered in any court of competent jurisdiction.
2.10. SURVIVAL. In the event that any provision herein is
determined to be unenforceable under the current law
at the time of execution of this Agreement, or
unenforceable under a law that may supersede that law
in place at the time of execution, all other
provisions and the intent of this Agreement shall
survive such findings.
2.11. INDEPENDENT CONTRACTOR. The Company acknowledges and
agrees that Helix has been retained solely as a M&A
and financial advisor to the Company. In such
capacity, Helix shall act as an independent
contractor.
2.12. WAIVER OF RIGHTS. No provision of this Agreement may
be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing by
the party against whom the same is sought to be
enforced and no failure by either party to enforce
any of its rights hereunder shall, except as
aforesaid, be deemed to be a waiver of such right. No
waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance
with, any provision of this Agreement to be performed
by such other party shall be deemed to be a waiver of
a similar or dissimilar provision hereof at the same
or any prior or subsequent time.
2.12. NOTICES. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be
properly given if delivered personally, mailed
prepaid registered mail, overnight courier, or sent
by telecopy (as long as the telecopy is followed by a
hard copy) addressed as follows:
IN THE CASE OF HELIX:
Ogen Perry
Helix Capital Services LLC
98 Battery Street
Suite 600
San Francisco, CA 94104
Tel: (415) 956-9950 Fax: (415) 956-9951
IN THE CASE OF BOGEN:
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Yaron Eitan
Geotek Communications
102 Chestnut Ridge Rd.
Montvale, NJ 07645
And:
Yoav Cohen
Bogen Communications International, Inc.
50 Spring St.
Ramsey, NJ 07446
or to such other address as the parties shall from
time to time specify by notice given in accordance
herewith. Any notice so given shall be conclusively
deemed to have been given or made on the day of
delivery, if delivered, if mailed by registered mail,
upon the date shown on the postal return receipt as
the date upon which the envelope containing such
notice was actually received by the addressee, if
delivered by overnight courier, two (2) days after
deposit with the overnight courier, and if by
telecopy, upon transmission thereof, as long as the
telecopy is followed by delivery of a hard copy.
2.13. ENTIRE AGREEMENT. This mutually signed Agreement,
attached Exhibits and any properly executed and
signed Amendments, constitutes the entire agreement
between the parties with respect to the engagement of
Helix contemplated hereby and cancels and supersedes
all prior undertakings and agreements between the
parties with respect thereto and no agreements or
representations, oral or otherwise, express or
implied, with respect to the subject matter hereof
have been made by either party which are not
expressly set forth in this Agreement.
3. MISCELLANEOUS. Each of the parties represents that it is duly
authorized to execute this Agreement. This Agreement may be
executed in any number of counterparts; each of which shall be
deemed to be an original and all of which together shall be
deemed to be the same agreement.
If you are in agreement with the foregoing, please execute a
copy in the space provided below and return it to Helix Capital
Corporation, L.L.C.
Regards,
<PAGE> 11
FOR HELIX CAPITAL SERVICES, LLC
By: /s/ Ogen Perry
-----------------------------------------
NAME: Ogen Perry
TITLE: Principal
Accepted this of August, 1997
FOR BOGEN COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Yoav M. Cohen
-----------------------------------------
NAME: Yoav M. Cohen
TITLE: Chief Financial Officer
<PAGE> 12
AMENDMENT TO
MERGERS AND ACQUISITIONS
ENGAGEMENT AGREEMENT
This Amendment, dated as of November 28, 1997, to the Mergers and
Acquisition Engagement Agreement, dated August, 1997, by and between Helix
Capital Services, LLC ("Helix") and Bogen Communications International, Inc.
("Bogen" or the "Company").
1. Section 1 of the Agreement is hereby amended in its entirety as
follows:
"1. PROPOSED SERVICES
1.1. Helix Capital Services LLC ("Helix") will
act as the principal financial advisor to
Bogen Communications International, Inc. and
its subsidiaries and affiliates ("Bogen" or
the "Company"), and will assist the Company
in identifying, introducing, analyzing,
structuring, negotiating, and effecting the
Transactions (as defined below), including
the Proposed Transactions (as described in
paragraph 1.3) on the terms and conditions
of this Agreement set forth below. In
parallel with services relating to the
Proposed Transactions, Helix will assist and
consult with the Company on strategic
financial and operational issues and
tactical implementation of concepts relating
to the growth of the Company.
1.2. Yoav Stern, and other professionals of
Helix, will devote significant time, as
needed, to participate in meetings, lead
strategic planning sessions, initiate and
help in recruiting key personnel and advise
management on operational issues in growth
and/or turnaround situations."
2. Section 2.2 of the Agreement is hereby amended in its entirety as
follows:
"2.2. Limitation and Exclusivity. The Company agrees that as
of the date hereof, Helix shall be the exclusive advisor to
the Company with respect to transactions pursuant to section
1.3.1 ("M&A Transactions") and the Company shall not enter
into any agreement relating to an M&A Transaction during the
term of this Agreement without the
<PAGE> 13
participation of Helix; provided, however, the Company may
retain another person or entity (a "Finder") to introduce to
the Company a business for the purpose of consummating an M&A
Transaction. If as a result of such introduction an M&A
Transaction is consummated, the Company may reduce Helix's
fees with respect to such transaction to the extent set forth
in paragraph 2.3.3.1 hereof. If the Company consummates an M&A
Transaction during the term of this Agreement (or for a period
of one year thereafter as described below) without Helix's
participation, the Company agrees that it, and its successors
and assigns, shall nevertheless be obligated to provide or
cause to be provided to Helix, the compensation provided in
paragraph 2.3.3.1 hereof."
3. Section 2.3.1 of the Agreement is hereby amended in its entirety as
follows:
"2.3.1 Retainer: The Company will pay Helix a monthly retainer
in the amount of $20,000 during the term of this Agreement."
4. Section 2.3.3.1 of the Agreement is hereby amended in its entirety
as follows:
"2.3.3.1. With respect to an M&A Transaction, the Company
shall pay Helix a success fee upon closing of each
Transaction. Success fees for each M&A Transaction shall be
determined by mutual agreement between Helix and the Company
based on market conditions, but in no event will be less than
2% of the Consideration Paid; provided, however, that if with
respect to any given M&A Transaction a Finder introduces to
the Company a business and such introduction results in an M&A
Transaction, any success fees due Helix may be reduced by the
amount of the fees the Company is obligated to pay to such
Finder; provided, however, that if all or any portion of such
fees to be paid to such Finder are not actually paid when due,
such fees or portion thereof, as applicable, shall be paid to
Helix at that time. Success fees shall be due and payable if
the Company completes a Proposed Transaction during the term
of this Agreement and within one year of the termination of
this Agreement with a party introduced to Bogen within the
term of this Agreement. This success fee will be paid in cash,
or in other negotiable securities and financial instruments as
specifically agreed in writing by Helix and the Company, but
in any case, if agreement is not reached, the success fee will
be
<PAGE> 14
paid in same consideration as paid or received by the
Company."
5. Section 2.8 of the Agreement is hereby amended in its entirety as
follows:
"2.8. Term and termination. This Agreement shall have a term
commencing on July 1, 1997 and extending through December 1,
2000, which term may be further extended by the mutual consent
of both parties. Notwithstanding the foregoing, the provisions
of paragraphs 2.3, 2.5 and 2.6 hereof will survive any
termination of the Agreement."
6. Section 2.12 of the Agreement is hereby amended in its entirety as
follows:
"2.12. Notices. Any notice required or permitted to be given
under this Agreement shall be in writing and shall be properly
given if delivered personally, mailed prepaid registered mail,
overnight courier, or sent by telecopy (as long as the
telecopy is followed by a hard copy) addressed as follows:
IN THE CASE OF HELIX:
Helix Capital Services LLC
98 Battery Street
Suite 600
San Francisco, CA 94104
Attn: Mr. Ogen Perry
Fax: (415) 956-9951
IN THE CASE OF BOGEN:
Bogen Communications International, Inc.
50 Spring St.
Ramsey, NJ 07446
Attn: Yoav Cohen
Fax: (201) 760-8771
With a copy to:
McDermott, Will & Emery
50 Rockefeller Plaza
New York, NY 10019
Attn: Cheryl V. Reicin, Esq.
Fax: (212) 547-5444
or to such other address as the parties shall from time to
time specify by notice given in accordance herewith. Any
notice so given shall be conclusively deemed to have been
given or made on
<PAGE> 15
the day of delivery, if delivered, if mailed by registered
mail, upon the date shown on the postal return receipt as the
date upon which the envelope containing such notice was
actually received by the addressee, if delivered by overnight
courier, two (2) days after deposit with the overnight
courier, and if by telecopy, upon transmission thereof, as
long as the telecopy is followed by delivery of a hard copy."
7. Other than as stated herein, the Agreement shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties below have executed this Amendment of
the date first set forth above.
HELIX CAPITAL SERVICES, LLC
By: /s/ Ogen Perry
------------------------------------
Name: Ogen Perry
Title: Principal
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Michael P. Fleischer
------------------------------------
Name: Michael P. Fleischer
Title: President
<PAGE> 1
EXHIBIT 10.2
WARRANT PURCHASE AGREEMENT
This WARRANT PURCHASE AGREEMENT ("Agreement") is entered into as of
November 28, 1997, by and between Bogen Communications International, Inc., a
Delaware corporation (the "Company"), and Helix Capital II, LLC (the
"Investor").
SECTION 1. DESCRIPTION OF THE TRANSACTION
The Company agrees to issue as of the date hereof to the Investor a
warrant to purchase 575,885 shares of its authorized but unissued common stock,
$.001 par value per share (the "Common Stock") (in the form attached hereto as
Exhibit A) (the "Warrant"), for an aggregate purchase price of $115,177 (the
"Purchase Price"). Any securities of the Company issued or issuable upon
exercise of the Warrant are referred to as "Warrant Shares."
SECTION 2. REPRESENTATIONS OF THE COMPANY
As part of the basis of this Agreement, the Company represents to the
Investor 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.
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 Warrant Shares have been,
or will be upon such issuance, duly authorized by all necessary corporate action
of the Company.
2.4 CAPITALIZATION. All of the presently outstanding shares of capital
stock of the Company have been validly authorized and issued and are fully paid
and nonassessable. The Company has authorized and reserved for issuance upon
exercise of the Warrants, Common Stock sufficient for the exercise of the
Warrants. Warrant Shares will be, when and if issued, validly authorized and
issued, fully paid and nonassessable and free of all encumbrances and
<PAGE> 2
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 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.
2.7 BROKERAGE. There are no claims for brokerage commissions, finder's
fees or similar compensation in connection with the transactions contemplated by
this Agreement.
2.8 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.
2.9 DISCLOSURE. This Agreement, including the exhibits hereto, do not
contain any untrue statement of material fact or, when taken as a whole, omit
any material fact necessary in order to make the statements contained herein or
therein not misleading.
2.10 CONSENTS, NOTICE. Except for those which have been obtained prior
to the date hereof, no consent, approval, order or authorization of or
declaration, registration or filing with any governmental body or any
nongovernmental person, including, without limitation, any creditor or
shareholder of the Company or any of its Subsidiaries, or any party to a
contract to which the Company or any Subsidiary is a party or any of their
respective assets is subject, is required in connection with the execution or
delivery by the Company of this Agreement, or the performance by the Company of
its obligations hereunder and thereunder, or as a condition to the legality,
validity or enforceability of this Agreement as the sale and issuance of the
Warrants or the Warrant Shares, except for such consents or approvals the
absence of which would not have a material effect on the Company operations,
financial condition or the transactions herein contemplated.
<PAGE> 3
2.11 LITIGATION. There are no actions, suits, arbitrations,
investigations or proceedings pending, or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or any of
their properties or rights of any of them. There is no judgment, decree,
injunction, rule or order of any government body or arbitrator outstanding
against the Company or any Subsidiary.
SECTION 3. REPRESENTATIONS AND AGREEMENTS OF THE INVESTOR
As part of the basis of this Agreement, the Investor represents to the
Company that on the date hereof:
3.1 AUTHORIZATION. The Investor has all requisite corporate or other
power and authority to enter into and perform this Agreement and the execution
of this Agreement and the documents executed by the Investor pursuant to this
Agreement have been authorized by all necessary corporate or other action on the
part of the Investor, have been executed and delivered, and constitute valid,
legal, binding agreements of the Investor enforceable against the Investor in
accordance with their terms.
3.2 INVESTMENT PURPOSE. The Investor is acquiring the Warrants for its
own account, for investment, and not with a view to any "distribution" within
the meaning of the Securities Act of 1933, as amended (the "Securities Act") .
The Investor has no intention to make any transfer of the Common Stock or
Warrants in violation of the Securities Act. No broker-dealer acted on behalf of
the Investor in connection with the offer or sale of the Warrants.
3.3 TRANSFER RESTRICTIONS. The Investor understands that because the
Warrants and Warrant Shares have not been registered under the Securities Act,
it cannot dispose of any or all of the Warrant Shares unless such Warrants and
Warrant Shares are subsequently registered under the Securities Act or
exemptions from such registration are available and that the Warrants and
Warrant Shares will contain legends reflecting such limitations. The Investor
acknowledges and understands that, except as provided in Section 4 of this
Agreement with respect to the Registerable Securities (as defined in Section 4.1
hereof), it has no independent right to require the Company to register the
Warrant Shares. The Investor understands that the Company may, as a condition to
the transfer of any of the Warrants or Warrant Shares, require that the request
for transfer be accompanied by an opinion of counsel, in form and substance
satisfactory to the Company, to the effect that the proposed transfer does not
result in a violation of the Securities Act, unless such transfer is covered by
an effective registration statement under the Securities Act.
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 Warrants, is able to bear the economic risk of loss of its
investment in the Company, has been granted the opportunity to make a thorough
investigation of the affairs of the Company, and has availed itself of such
opportunity either directly or through its authorized representatives.
3.5 PRIVATE OFFERING. The Investor has been advised that the Warrants
have not been and are not being registered under the Securities Act or under the
"blue sky" laws of any jurisdiction and that the Company in issuing the Warrants
is relying upon, among other things, the representations and warranties of such
Investor contained in this SECTION 3 in concluding that such issuance is a
"private offering" and does not require compliance with the registration
provisions of the Securities Act. The Investor is an "accredited investor"
within the meaning of Rule 501 under the Securities Act.
SECTION 4. REGISTRATION RIGHTS
<PAGE> 4
4.1 DEFINITIONS. For purposes of this Section 4: (a) the term
"Registrable Securities" means the Warrant Shares; and (b) the term "Holder"
means any person owning or having the right to acquire Registrable Securities.
4.2 REQUEST FOR REGISTRATION.
(a) If at any time after the earlier of (a) the two year anniversary of
the date hereof or (b) the date on which a Change of Control (as such term is
defined in the Warrant) is effected, the Company shall receive a written request
from Holders of a majority of the Registrable Securities then outstanding that
the Company file a registration statement under the Securities Act, then the
Company shall use its best efforts to effect as soon as practicable, after the
receipt of such request, the registration under the Securities Act of the number
of such Registrable Securities which such Holders (and any other Holders who may
also elect to participate within 10 days thereafter) request to be registered.
Without the prior written consent of the Holders requesting a registration,
neither the Company, nor any other person (other than the other Holders), shall
be entitled to include Common Stock in the registrations made under this Section
4.2. The Company is obligated to effect two completed and effective
registrations pursuant to this Section 4.2.
(b) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 4.2, a
certificate signed by an executive officer of the Company stating that in the
good faith judgment of the Board of Directors of the Company (excluding
affiliates of the Investor) 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; provided, further that the Company may not utilize this
right if the Holders requesting registration do so at any time within the 60-day
period following the date on which a Change of Control is effected.
4.3 INCIDENTAL REGISTRATION. If (but without any obligation to do so)
the Company proposes at any time after the earlier of (a) the two year
anniversary of the date hereof or (b) the date on which a Change of Control is
effected, to register (including for this purpose a registration effected by the
Company for shareholders other than the Holders) any shares of its capital stock
or other securities under the Securities Act (other than a registration relating
solely to securities issued in connection with mergers, acquisitions, exchange
offers, dividend reinvestment plans, employee stock ownership plans or stock
option plans, thrift plans, pension plans or other employee benefit plans, or a
registration on any form which does not include substantially the same
information, other than information related to the selling shareholders or their
plan of distribution, as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at such time, promptly give each Holder written notice of such registration.
Upon the written request of each Holder given within twenty (20) days after
mailing of such notice by the Company, the Company shall, subject to the
provisions of Section 4.8, cause to be registered under the Securities Act all
of the Registrable Securities that each such Holder has requested to be so
registered. If at any time after giving such written notice of its intention to
register any of its securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, at its sole
election, the Company may give written notice of such determination to each
Holder and thereupon shall be relieved of its obligation to register any Common
Stock in connection with such registration.
4.4 RESERVED.
<PAGE> 5
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 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.
<PAGE> 6
4.7 EXPENSES OF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to this Section 4, including without limitation, all
registration, filing and qualification fees, printers and accounting fees and
fees and disbursements of counsel for the Company shall be borne by the Company;
provided, however, in the event the Company includes in any registration
statement shares for sale for its own account, it shall pay the pro rata portion
of any underwriting discounts and commissions attributable to such securities
for its own account. Notwithstanding the immediately preceding sentence, the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 4.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all Holders participating
in such withdrawn registration shall bear such expenses pro rata, but shall also
be entitled to reassert such one demand registration pursuant to Section 4.2);
provided, however, that if at the time of such withdrawal the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such expenses and shall retain
their rights pursuant to Section 4.2
4.8 UNDERWRITING REQUIREMENTS; CUTBACK. In connection with any offering
involving an underwriting of shares being issued by and sold on behalf of the
Company, the Company shall not be required under Section 4.3 to include any of
the Holders' securities in such underwriting unless they accept the customary
and reasonable terms of the underwriting as agreed upon between the Company and
the underwriters selected by it, and then only in such quantity as will not, in
the opinion of the underwriters, jeopardize the success of the offering by the
Company. If the total amount of securities, including Registrable Securities,
requested to be included in such offering exceeds the amount of securities that
the underwriters reasonably believe compatible with the success of the offering,
then Holders may include in the offering only that number of such Registrable
Securities which the underwriters believe will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata among the
Holders according to the total amount of securities entitled to be included
therein owned by each Holder or in such other proportions as shall mutually be
agreed to by such Holders); provided, however, Registrable Securities shall be
excluded from such offering only pro rata to the same extent as securities
proposed to be included for the account of other persons other than the Company
in such offering.
4.9 INDEMNIFICATION AND CONTRIBUTION. In the event any Registrable
Securities are included pursuant to a registration statement under this Section
4:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Securities Act) and
each person if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several) to which they or any of them may become subject
under the Securities Act, the Exchange Act or any other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus (but only if such is not
corrected in the final prospectus) contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading (but only if such is not corrected in the final
prospectus), or (iii) any violation or alleged violation by the Company in
connection with the registration of Registrable Securities under the Securities
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any
<PAGE> 7
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 4.9(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 or parties by the counsel retained by
the indemnifying party, in the opinion of counsel appointed by the indemnified
party or parties, would be inappropriate due to actual or potential differing
interests between such indemnified party or parties and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 4.9, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 4.9.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 4.9(a) is
applicable but for any reason is held to be unavailable from the Company with
respect to all Holders or any Holder, the Company and the Holder or Holders, as
the case may be, shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted) to which the Company and one or more of the
<PAGE> 8
Holders may be subject in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand, and the Holder or Holders on the
other, in connection with statements or omissions which resulted in such losses,
claims, damages or liabilities. Notwithstanding the foregoing, no Holder shall
be required to contribute any amount in excess of the net proceeds received by
such Holder from the Registrable Securities as the case may be, sold by such
Holder pursuant to the registration statement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each person, if any, who controls a Holder within
the meaning of the Securities Act shall have the same rights to contribution as
such Holder.
(e) The obligations of the Company and Holders under this Section 4.9
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 4 or otherwise.
4.10 "MARKET STAND-OFF AGREEMENT". The Investor hereby agrees that for
a period (the "Stand-Off Period") of (a) 90 days, or (b) if requested by the
underwriter of Common Stock or other securities of the Company, such longer
period of time not to exceed 180 days, 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, 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.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instruments with respect to the Registrable Securities of the
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of the Stand-Off Period.
Notwithstanding the foregoing, the obligations described in this
Section 4.10 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-14 or Form S-15 or similar forms which may be promulgated
in the future or any registration statement filed in connection with the merger
or consolidation of the Company, or the issuance of Company securities in
connection with its acquisition of another business or assets.
4.11 LETTER OR OPINION OF COUNSEL IN LIEU OF REGISTRATION. If in the
opinion of counsel for the Company, the Investor is able to sell all of its
Registrable Securities in a three-month period pursuant to Rule 144 under the
Securities Act, the Company will not be required to register any Registrable
Securities of the Investor, notwithstanding any provision of this Section 4 to
the contrary.
4.12 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 4
may be amended or the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of a majority of the Registrable
Securities then outstanding. An amendment or waiver effected in accordance with
this Section shall be binding upon each Holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities are convertible), each future Holder of all such securities, and the
Company.
SECTION 5. GENERAL
<PAGE> 9
5.1 AMENDMENTS, WAIVERS AND CONSENTS. Any consents required and any
waiver, amendment or other action of the Investor made only by consent(s) in
writing signed by the Investor. Any amendment or waiver made according to this
paragraph will be binding upon each holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities have been converted) and each future holder. Any amendment or waiver
by the Company must be made in writing.
5.2 SURVIVAL; ASSIGNABILITY OF RIGHTS. Except as set forth in Section
4, all representations and agreements of the parties made in this Agreement and
in the certificates, exhibits or other written information delivered or
furnished by one party to the other in connection with this Agreement will
survive for a period of one (1) year.
5.3 GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PROVISIONS THEREOF.
5.4 COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be taken to be an original; but such
counterparts will together constitute one document.
5.5 NOTICES AND DEMANDS. Any notice or demand which is permitted or
required hereunder will be deemed to have been sufficiently received (except as
otherwise provided herein) (a) upon receipt when personally delivered, (b) one
(1) day after sent by overnight delivery or telecopy providing confirmation or
receipt of delivery, or (c) three (3) days after being sent by certified or
registered mail, postage and charges prepaid, return receipt requested to the
addresses shown on the signature page of this Agreement, or at any other address
designated by such applicable party in writing.
5.6 SEVERABILITY. If any provision of this Agreement is held invalid
under applicable law, such provision will be ineffective to the extent of such
invalidity, and such invalid provision will be modified to the extent necessary
to make it valid and enforceable. Any such invalidity will not invalidate the
remainder of this Agreement.
5.7 EXPENSES. Each of the Company and the Investor will pay their
respective costs and expenses that they incur with respect to the negotiation,
execution, delivery, amendment and/or performance of this Agreement.
5.8 ENTIRE AGREEMENT. This Agreement (including the exhibits hereto)
and the agreements referenced as exhibits to this Agreement constitute the
entire agreement of the parties with respect to the subject matter thereof, and
supersede any prior agreements.
<PAGE> 10
The undersigned have executed this Agreement as of the day and year
first written above.
COMPANY:
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Michael P. Fleischer
------------------------------------
Name: Michael P. Fleischer
Title: President
Address: 50 Spring Street
Ramsey, NJ 07446
Telecopy: (201) 760-8771
INVESTOR:
HELIX CAPITAL II, LLC
By: /s/ OGEN PERRY
------------------------------------
Name: Ogen Perry
Title: Principal
Address: 98 Battery Street
San Francisco, CA 94111
Telecopy: (415) 956-9949
<PAGE> 1
EXHIBIT 10.3
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK
No. 2 575,885 Shares
FOR VALUE RECEIVED, Bogen Communications International, Inc., a
Delaware corporation (the "COMPANY"), hereby certifies that Helix Capital II,
LLC (the "PURCHASER") or its permitted successors and assigns, is entitled to
purchase from the Company, at any time or from time to time as specified in
Section 1 below, commencing November 28, 1998 (the "COMMENCEMENT DATE") and
prior to 5:00 P.M., New York City time, on November 27, 2002, Five Hundred and
Seventy-Five Thousand Eight Hundred and Eighty-Five (575,885) fully paid and
non-assessable shares of the common stock, $.001 par value per share, of the
Company for an aggregate purchase price of $3,167,368 (computed on the basis of
$5.50 per share). (Hereinafter, (i) said common stock, together with any other
equity securities which may be issued by the Company with respect thereto or in
substitution therefor, is referred to as the "COMMON STOCK," (ii) the shares of
the Common Stock purchasable hereunder or under any other Warrant (as
hereinafter defined) are referred to individually as a "WARRANT SHARE" and
collectively as the "WARRANT SHARES," (iii) the aggregate purchase price payable
for the Warrant Shares hereunder is referred to as the "AGGREGATE WARRANT
PRICE," (iv) the price payable for each of the Warrant Shares hereunder is
referred to as the "PER SHARE WARRANT PRICE," (v) this Warrant and all Warrants
hereafter issued in exchange or substitution for this Warrant or such similar
Warrants are referred to as the "WARRANTS" and (vi) the holder of this Warrant
is referred to as the "Holder" and the holder of this Warrant and all other
Warrants or Warrant Shares issued upon the exercise of any Warrant are referred
to as the "HOLDERS".) The Aggregate Warrant Price is not subject to adjustment.
The Per Share Warrant Price is subject to adjustment as hereinafter provided; in
the event of any such adjustment, the number of Warrant Shares shall be adjusted
by dividing the Aggregate Warrant Price by the Per Share Warrant Price in effect
immediately after such adjustment. This Warrant is being issued pursuant to
Warrant Purchase Agreement of even date herewith (the "Purchase Agreement"), and
is subject to the terms and conditions set forth therein.
1. EXERCISE OF WARRANT. This Warrant may be exercised in whole
or in part at any time, or from time to time, on or after the Commencement Date.
Exercise of this Warrant by the Holder shall be made by the surrender of this
Warrant (with the subscription form at the end hereof, or a reasonable facsimile
thereof, duly executed) at the address set forth in Subsection 9(a) hereof,
together with proper payment of the Aggregate Warrant Price, or the
proportionate part hereof if this Warrant is exercised in part. Payment for
Warrant Shares shall be made by certified or official bank check payable to the
order of the Company. If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of the Common Stock, and the Holder is
entitled to receive a new Warrant covering the Warrant Shares which have not
been exercised and setting forth the proportionate part of the Aggregate Warrant
Price applicable to such Warrant Shares. Upon such surrender of this Warrant,
the Company will (a) issue a certificate or certificates in the name of the
Holder (or any designee of the Holder to whom the Warrant is transferred in
accordance with Section 6
<PAGE> 2
hereof) for the largest number of whole shares of the Common Stock to which the
Holder shall be entitled and, if this Warrant is exercised in whole, in lieu of
any fractional share of the Common Stock to which the Holder shall be entitled,
pay to the Holder cash in an amount equal to the fair value of such fractional
share (determined in such reasonable manner as the members of the Board of
Directors of the Company (other than any person who, directly or indirectly, has
a beneficial ownership interest in this Warrant) shall determine), and (b)
deliver the other securities and properties receivable upon the exercise of this
Warrant, or the proportionate part thereof if this Warrant is exercised in part,
pursuant to the provisions of this Warrant. Notwithstanding anything herein to
the contrary, this Warrant shall become fully exercisable upon the occurrence of
a "Change of Control" (as defined below). For purposes hereof, the term "Change
of Control" shall mean (i) any "person" (as such term is defined in Section
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than any person who acquired shares of the Company's
Series A Preferred Stock on the date hereof or any affiliate thereof) becoming
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the Company's then
outstanding voting securities (ii) any transaction as a result of which the
stockholders of the Company immediately before such transaction or any
affiliates of such stockholders cease to own at least fifty percent (50%) of the
voting stock of (x) the Company or (y) any entity that results from the
participation of the Company in a reorganization, liquidation or any other form
of corporate transaction; (iii) a merger, consolidation, reorganization,
liquidation or dissolution in which the Company does not survive; or (iv) a
sale, lease, exchange or other disposition of all or substantially all of the
property and assets of the Company.
2. RESERVATION OF WARRANT SHARES. The Company agrees that,
prior to the expiration of this Warrant, the Company will at all times have
authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant, the shares of the Common Stock and
other securities and properties as from time to time shall be receivable upon
the exercise of this Warrant, free and clear of all restrictions on sale or
transfer and free and clear of all preemptive rights and rights of first
refusal.
3. PROTECTION AGAINST DILUTION. (a) If the Company shall at
any time prior to the expiration of the Warrant and prior to the exercise
thereof: (a) declare or pay to the holders of Common Stock a dividend payable in
any kind of shares of stock of the Company; or (b) change or divide or otherwise
reclassify its Common Stock into the same or different number of shares with or
without par value, or into shares of any class or classes; or (c) consolidate or
merge with, or transfer all or substantially all of its property to, any other
corporation; or (d) make any distribution of its assets to holders of its Common
Stock as a liquidation or partial liquidation dividend or by way of return of
capital; then, upon the subsequent exercise of the Warrant, the Holder shall
receive for the exercise price, in addition to or in substitution for the
Warrant Shares which the Holder would otherwise then be entitled upon such
exercise, such additional shares of Common Stock or scrip of the Company, or
such reclassified shares of Common Stock of the Company, or such shares or
securities or assets of the entity resulting from such consolidation or merger
or transfer of such assets of
- 27 -
<PAGE> 3
the Company, which the Holder would have been entitled to receive had the Holder
exercised the Warrant prior to the happening of any of the foregoing events.
(b) If the Board of Directors of the Company shall
(i) declare any dividend or other distribution with respect to the Common Stock,
other than a cash dividend, (ii) offer to the holders of shares of Common Stock
any additional shares of Common Stock, any securities convertible into or
exercisable for shares of Common Stock or any rights to subscribe thereto, or
(iii) propose a dissolution, liquidation or winding up of the Company, the
Company shall mail notice thereof to the Holders of the Warrants not less than
15 days prior to the record date fixed for determining stockholders entitled to
participate in such dividend, distribution, offer or subscription right or to
vote on such dissolution, liquidation or winding up.
(c) If at any time or from time to time the Company
shall take any action affecting its Common Stock or any other capital stock of
the Company, not otherwise described in any of the foregoing subsections of this
Section 3, then, if the failure to make any adjustment would, in the reasonable
opinion of the members of the Board of Directors of the Company (other than any
person who, directly or indirectly, has a beneficial ownership interest in this
Warrant), have a materially adverse effect upon the rights of the Holder of the
Warrant, the number of shares of Common Stock or other stock comprising a
Warrant Share, or the Per Share Warrant Price, shall be adjusted in such manner
and at such time as the members of the Board of Directors of the Company (other
than any person who, directly or indirectly, has a beneficial ownership interest
in this Warrant) may in good faith determine to be equitable under the
circumstances.
(d) Upon any adjustment or modification of the rights
of the Holder of Warrant in accordance with this Section 3, the Company shall
promptly cause its Chief Financial Officer to provide a notice to the Holder
setting forth such adjustment or modification, a brief statement of the facts
requiring such adjustment or modification and the manner of computing the same.
4. FULLY PAID STOCK; TAXES. The Company agrees that the shares
of the Common Stock, or any other capital stock, represented by each and every
certificate for Warrant Shares delivered on the exercise of this Warrant shall,
at the time of such delivery, be validly issued and outstanding, fully paid and
nonassessable, and not subject to preemptive rights or rights of first refusal,
and the Company will take all such actions as may be necessary to assure that
the par value or stated value, if any, per share of the Common Stock is at all
times equal to or less than the then Per Share Warrant Price. The Company
further covenants and agrees that it will pay, when due and payable, any and all
Federal and state stamp, original issue or similar taxes which may be payable in
respect of the issue of any Warrant Share or certificate therefor.
5. TRANSFER RESTRICTIONS. This Warrant may not be sold,
transferred or assigned by the Holder.
- 28 -
<PAGE> 4
6. LOSS, ETC., OF WARRANT. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or mutilation of
this Warrant, and of indemnity reasonably satisfactory to the Company, if lost,
stolen or destroyed, and upon surrender and cancellation of this Warrant, if
mutilated, the Company shall execute and deliver to the Holder a new Warrant of
like date, tenor and denomination.
7. WARRANT HOLDER NOT SHAREHOLDER. Except as otherwise
provided herein, this Warrant does not confer upon the Holder any right to vote
or to consent to or receive notice as a stockholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or liabilities as a
stockholder, prior to the exercise hereof.
8. INFORMATION TO HOLDER. The Company agrees that it shall
deliver to the Holder promptly after their becoming available copies of all
financial statements, reports and proxy statements which the Company shall have
sent to its stockholders generally.
9. NOTICES. All notices and other communications required or
permitted to be given under this Warrant shall be in writing and shall be deemed
to have been duly given if delivered personally, or sent by recognized overnight
courier or by certified mail, return receipt requested, postage paid, to the
parties hereto as follows:
(a) if to the Company at 50 Spring Street, Ramsey,
New Jersey 07446 Attn.: Chief Financial Officer or such other address as the
Company has designated in writing to the Holder, with a copy to McDermott, Will
& Emery, 50 Rockefeller Plaza, New York, New York 10020 Attn.: Cheryl V. Reicin,
Esq. or
(b) if to the Holder at Helix Capital II, LLC, 98
Battery Street, Suite #600, San Francisco, California 94111, or such other
address as the Holder has designated in writing to the Company according to the
notice provisions hereunder.
10. HEADINGS. The headings of this Warrant have been inserted
as a matter of convenience and shall not affect the construction hereof.
11. APPLICABLE LAW. This Warrant shall be governed by and
construed in accordance with the law of the State of New York without giving
effect to the principles of conflicts of law thereof.
- 29 -
<PAGE> 5
IN WITNESS WHEREOF, Bogen Communications International, Inc., has
caused this Warrant to be signed by its President and its corporate seal to be
hereunto affixed and attested by its Chief Financial Officer and Assistant
Secretary as of the 26th day of November, 1997.
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Michael P. Fleischer
------------------------------------
Michael P. Fleischer
President
ATTEST:
By: /s/ YOAV M. COHEN
-----------------------
Yoav M. Cohen
Secretary
[Corporate Seal]
- 30 -
<PAGE> 6
ASSIGNMENT
FOR VALUE RECEIVED ___________________________ hereby sells,
assigns and transfers unto ______________________ the foregoing Warrant and all
rights evidenced thereby, and does irrevocably constitute and appoint
______________________, attorney, to transfer said Warrant on the books of Bogen
Communications International, Inc.
Dated: __________________________
Signature: ______________________
Address: ____________________________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED ___________________________ hereby assigns
and transfers unto ________________________________ the right to purchase
______________________ shares of the Common Stock of ___________________________
covered by the foregoing Warrant, and a proportionate part of said Warrant and
the rights evidenced thereby, and does irrevocably constitute and appoint
___________________________, attorney, to transfer that part of said Warrant on
the books of Bogen Communications International, Inc.
Dated: __________________________
Signature: ______________________
Address: ____________________________________________
- 31 -
<PAGE> 7
SUBSCRIPTION FORM
(To be executed upon exercise of Warrant pursuant to Section 1)
The undersigned hereby irrevocably elects to exercise the
right of purchase represented by the within Warrant for, and to purchase
thereunder, ____________ shares of Common Stock, as provided for in Section l,
and tenders herewith payment of the purchase price in full in the form of cash
or a certified or official bank check in the amount of $_______________.
Please issue a certificate or certificates for such Common Stock in the
name of, and pay any cash for any fractional share to:
Name ________________________________________________
_____________________________________________________
(Please Print Name, Address and Social Security No.)
Address _____________________________________________
_____________________________________________________
Social Security Number ______________________________
Signature ___________________________________
NOTE: The above signature should
correspond exactly with
the name on the first page
of this Warrant or with
the name of the assignee
appearing in the
assignment form below.
Date ________________________________________________
And if said number of shares shall not be all the shares
purchasable under the within Warrant, a new Warrant is to be issued in the name
of said undersigned for the balance remaining of the shares purchasable
thereunder.
- 32 -
