<PAGE>
As filed with the Securities and Exchange Commission on February 4, 1997
Registration No. 333-_____
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
________________
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
38-3114641
(I.R.S. Employer Identification Number)
50 Spring Street
Ramsey, New Jersey 07446
(Address of principal executive offices)
Bogen Communications International, Inc.
1996 Incentive Stock Option Plan
(Full Title of Plan)
Yoav M. Cohen, Chief Financial Officer and Secretary
Bogen Communications International, Inc.
50 Spring Street
Ramsey, New Jersey 07446
(Name and address of agent for service)
(201) 934-8500
(Telephone number, including area code, of agent for service)
__________________
Copies to:
Stephen T. Burdumy, Esquire
Klehr, Harrison, Harvey, Branzburg & Ellers
1401 Walnut Street
Philadelphia, Pennsylvania 19102
(215) 568-6060
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
________________________________________________________________________________________________
Proposed Proposed Amount of
Title of Securities Amount to be Maximum Offering Maximum Aggregate Registration
to be Registered Registered Price Per Share Offering Price Fee
________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock, par
value $.001 per share 1,253,335 $4.0063(1) $5,021,236.01 $1,521.59
________________________________________________________________________________________________
</TABLE>
(1) Based on the average of the high and low sale prices of the Registrant's
Common Stock as reported on the American Stock Exchange on January 31,
1997, estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN PROSPECTUS
A reoffer prospectus prepared in accordance with the requirements of Part I
of Form S-3 is being filed with the Commission as part of this Registration
Statement. The Section 10(a) prospectus is omitted from this Registration
Statement in accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
<PAGE>
PROSPECTUS
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
50 Spring Street
Ramsey, New Jersey 07446
(201) 934-8500
____________________________________
1,253,335 Shares of Common Stock
____________________________________
The shares (the "Shares") of common stock, par value $.001 per share (the
"Common Stock"), of Bogen Communications International, Inc., formerly European
Gateway Acquisition Corp. (together with its subsidiaries, the "Company") which
are the subject of this Prospectus and which may be sold from time to time
hereunder are shares which may be acquired by certain current or former
officers, employees and directors of the Company and independent contractors and
consultants who perform services for the Company (collectively, the "Selling
Stockholders") (i) upon the exercise of options to purchase such Shares granted
or to be granted to the Selling Stockholders by the Company pursuant to the
Company's 1996 Incentive Stock Option Plan (the "Plan") or (ii) upon the
exercise of options otherwise granted to Selling Shareholders. See "Selling
Stockholders."
It is anticipated that the Shares may be offered for sale by one or more of
the Selling Stockholders, in their discretion, on a delayed or continuous basis
from time to time in transactions in the open market at prices prevailing at the
time of sale on the American Stock Exchange (the "AMEX") under the symbol "BGN",
in private transactions at negotiated prices or otherwise. Such transactions
may be effected directly by the Selling Stockholders, each acting as principal
for such Selling Shareholder's own account. Alternatively, such transactions
may be effected through brokers, dealers or other agents designated from time to
time by the Selling Stockholders, and such brokers, dealers or other agents may
receive compensation in the form of customary brokerage commissions or
concessions from the Selling Stockholders or the purchasers of the Shares. The
Shares held by the Selling Stockholders may also be sold hereunder by brokers,
dealers, banks or other persons or entities who receive such Shares as a pledgee
of any of the Selling Stockholders. The Selling Stockholders, brokers who
execute orders on their behalf and other persons who participate in the offering
of the Shares on their behalf may be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act of 1933, as amended (the
"Securities Act") and a portion of the proceeds of sales and commissions or
concessions therefore may be deemed underwriting compensation for purposes of
the Securities Act. The Company will not receive any part of the proceeds from
the sale of Shares by the Selling Stockholders.
The Company will pay all costs and expenses incurred by it in connection
with the registration of the Shares under the Securities Act. The Selling
Stockholders will pay the costs associated with any sales of Shares, including
any discounts, commissions and applicable transfer taxes.
SEE "RISK FACTORS" FOR A DISCUSSION OF CERTAIN FACTORS TO BE CONSIDERED BY
PURCHASERS OF THE SHARES.
____________________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is February 4, 1997.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH THE OFFERING
MADE BY THIS PROSPECTUS, AND IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
BUY THE SECURITIES TO WHICH THIS PROSPECTUS RELATES IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS NOT LAWFUL TO MAKE SUCH AN OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR SINCE THE DATE AS
OF WHICH INFORMATION IS SET FORTH HEREIN.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy and information statements
and other information can be inspected and copied at prescribed rates at the
Public Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, and at the Commission's regional offices located at 7
World Trade Center, New York, New York 10048, and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. The Common Stock of
the Company is listed on the American Stock Exchange, and reports, proxy and
information material and other information concerning the Company may be
inspected at the offices of the American Stock Exchange, 86 Trinity Place, New
York, New York 10006. Such reports and other information can be reviewed
through the Commission's Electronic Data Gathering Analysis and Retrieval
System, which is publicly available through the Commission's web site
(http:\\www.sec.gov).
This Prospectus constitutes a part of a registration statement on Form S-8
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act with respect to the securities offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain parts of which are omitted in accordance with the rules and
regulations of the Commission. Reference is hereby made to the Registration
Statement and to the exhibits thereto for further information with respect to
the Company and the securities offered hereby. Copies of the Registration
Statement and the exhibits thereto are on file at the offices of the Commission
and may be obtained upon payment of the prescribed fee or may be examined
without charge at the Public Reference Section of the Commission described
above. Statements contained herein concerning the provisions of documents are
necessarily summaries of such documents, and each statement is qualified in its
entirety by reference to the copy of the applicable document filed with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K (as amended on Form 10-K/A)
for the fiscal year ended December 31, 1995 (the "1995 Annual
Report");
(b) The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996 and September 30, 1996; and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated September 27,
1995, including all amendments and reports filed for the purpose of
updating such description.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15 (d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
completion or termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained
-2-
<PAGE>
in a document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document, which also is
or is deemed to be incorporated by reference herein, modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner to whom this Prospectus is delivered, upon written or oral
request, a copy of any or all of such documents which are incorporated herein by
reference (other than exhibits to such documents unless such exhibits are
specifically incorporated by reference into the documents that this Prospectus
incorporates). Written or oral requests for copies should be directed to Yoav
M. Cohen, Chief Financial Officer and Secretary, Bogen Communications
International, Inc., 50 Spring Street, Ramsey, New Jersey 07446, (201) 934-8500.
-3-
<PAGE>
THE COMPANY
General
On May 6, 1993 European Gateway Acquisition Corp. was formed as a Specified
Purpose Acquisition Company, with the objective of acquiring a medium-sized
operating business engaged in industrial manufacturing or industrial services
and located in Germany, Switzerland or Austria. The Company consummated an
initial public offering of 1,550,000 shares of Common Stock and 3,100,000
Warrants on October 15, 1993 and received net proceeds of approximately
$8,120,000 after payment of offering expenses. A majority of such proceeds
($7,533,000) were held in an interest-bearing trust account and used to finance
the Business Combination referred to below. As of February 4, 1997, there were
5,758,850 shares of Common Stock and 3,660,000 Warrants outstanding.
Until April 6, 1995, the Company did not engage in any substantive
commercial business other than evaluating prospective companies for
acquisition. On such date, the Company entered into an agreement with Geotek
Communications, Inc. ("Geotek"), dated April 6, 1995, as amended (the "Stock
Purchase Agreement"), to acquire controlling interests in two telecommunications
products companies (the "Business Combination," as more fully described below).
Pursuant to the terms of the Stock Purchase Agreement, on August 21, 1995,
the Company acquired from Geotek (i) approximately 68% of the outstanding
capital of Speech Design GmbH, a Munich, Germany - based corporation ("Speech
Design") which develops, assembles and markets telephone peripherals utilizing
digital voice processing technologies, and an option to purchase the remaining
32% of such capital and (ii) approximately 99% of the outstanding shares of
capital stock of Bogen Corporation, a Delaware corporation ("Bogen"), which,
through its wholly-owned subsidiary, develops, manufactures and sells
telecommunications peripherals and sound processing products. As consideration
for such acquisitions, the Company issued to Geotek: (i) 3,701,919 shares of
Common Stock; (ii) 200,000 Warrants; (iii) $7,000,000 in cash and (iv)
convertible promissory notes in the combined principal amount of $3,000,000.
Furthermore, depending on whether Speech Design and Bogen achieve or fail to
achieve certain earnings goals, the Company may be obligated to make an
additional adjustment payment to Geotek of up to $11 million in cash or Common
Stock or, as the case may be, Geotek may be obligated to make an adjustment
payment to the Company of up to $2.5 million in cash (or at its option, a
ten-year loan in the principal amount of as much as $5 million bearing interest
at 4% per annum). Geotek also received as consideration the right to receive
70% of any cash proceeds received by the Company upon the exercise of the
3,660,000 Warrants outstanding upon the consummation of the acquisitions.
Following the Business Combination, Geotek became a holder of approximately a
64% controlling interest in the Company and the Company changed its name to
Bogen Communication International, Inc.
As of January 1, 1996, the Stock Purchase Agreement was amended such that
(i) the convertible promissory notes in the combined principal amount of
$3,000,000 were restructured to a promissory note in the principal amount of
$500,000 bearing interest as stated in the initial agreement, (ii) Geotek is no
longer potentially obligated to make an adjustment payment to the Company of
$2.5 million in cash (or a $5 million interest bearing note) and (iii) Geotek
retains its right, commencing February 21, 1997 and terminating one year
thereafter, to purchase $3 million worth of Common Stock at the rate provided in
the convertible promissory note.
As of the date hereof, the Company's principal assets consist of its
approximately 68% interest in Speech Design and its approximately 99% interest
in Bogen.
On December 13, 1996, at the Company's Annual Meeting, the Company's
stockholders approved the adoption of the 1996 Incentive Stock Option Plan.
Speech Design
Speech Design, located in Munich, Germany, develops, assembles and markets
computerized telecommunications equipment for use with PABXs (corporate
telephone systems). Founded in 1983, Speech Design pioneered digital voice
processing applications in Germany with several products for voice input and
output in the medical, industrial and communications environments. Between 1986
and 1992, Speech Design was engaged primarily in selling digital answering
devices for analog cellular telephones. With the advent of the European GSM
digital
-4-
<PAGE>
standard and the related decline of hardware prices, Speech Design's activities
were refocused from the cellular market to the PABX peripherals market.
Its product range currently includes music-on-hold, auto attendant, digital
announcer and voice mail peripherals for mid-sized PABX systems. Speech Design
sells its products in 11 European countries and in the United States.
Bogen
Bogen, located in Ramsey, New Jersey, develops, manufactures and sells
computerized telecommunications peripherals and sound processing products
through its wholly-owned subsidiary, Bogen Communications, Inc. Since its
founding in 1932, Bogen has been involved in the communications industry,
concentrating its efforts on the development and sale of equipment for
commercial, industrial, professional and institutional markets and applications.
Bogen's traditional line of products includes audio amplifiers and related
sound equipment for professional, industrial and commercial systems
applications, such as telephone paging, intercommunications and administrative
communications systems for schools, correctional facilities and other
institutions. In 1991, Bogen began to develop, manufacture and sell a line of
digitized computerized telecommunication peripherals for PABX systems. During
1993, Bogen introduced its first digitized, voice processing communication
peripherals for the fast growing SOHO (Small Office Home Office) market. These
two events refocused Bogen's main efforts on telecommunication peripheral
products for both the PABX and SOHO markets.
The Company's executive offices are located at 50 Spring Street, Ramsey,
New Jersey 07401, and its telephone number is (201) 934-8500.
RISK FACTORS
The securities described herein involve a substantial degree of
risk. The following factors, in addition to those discussed elsewhere in this
Prospectus or incorporated herein by reference, should be carefully considered
in evaluating the Company and its business prospects before purchasing the
securities offered by this Prospectus. This Prospectus contains and
incorporates by reference forward-looking statements within the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995. Reference
is made in particular to the discussion under "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in the Company's
Annual Report on Form 10-K (as amended on Form 10-K/A) for the year ended
December 31, 1995 (the "Form 10-K") and the Quarterly Reports on Form 10-Q for
the quarters ended March 31, 1996, June 30, 1996 and September 30, 1996, and
under "Business" in the Form 10-K, incorporated in this Prospectus by reference.
Such statements are based on current expectations that involve a number of
uncertainties including those set forth in the Risk Factors below. Actual
results could differ materially from those projected in the forward-looking
statements.
1. Recently Organized Company. Although Bogen has been operating since
1932 and Speech Design since 1983, the Company itself is less than four years
old and had no significant operations prior to August 21, 1995.
2. Key Executives. In November 1995, Eitan Nahum resigned as a director
and as the President and Chief Executive Officer of the Company and in August,
1996, Dov Gal resigned as the Chief Financial Officer of the Company. Zvi Peled
now serves as the Company's President and Chief Executive Officer and Yoav M.
Cohen now serves as the Company's Chief Financial Officer and Secretary. The
unexpected loss of services of one or more of the Company's executive officers
could adversely affect the Company. The Company has not obtained a policy of
insurance on the life of any officer. The unavailability or death of any of the
officers of the Company could have a material adverse effect upon the Company's
business.
3. Competition. The Company is engaged in an industry characterized by
rapid technological change, rapid growth and intense competition. Bogen faces
competition from highly focused North American and Japanese competitors. TOA,
University and PV (Commercial Sound), Rauland-Borg and Dukane (Engineered Sound)
and Premier, Wheelock and Valcom (Telco) are each investing considerable effort
in developing new products and enhancing their competiveness. The Company's
competitors are well established, have product inventory, financial, marketing,
research and other personnel as well as other resources substantially greater
than the Company's resources, and have more extensive facilities than those
which are now, or in the foreseeable future will become, available to the
Company.
-5-
<PAGE>
4. Discontinuation of Product Line. In December 1995, the Company
decided to phase out Bogen's entire Office Automated Systems product line
because of intense competition from (i) central voice mail services offered by
local telephone companies and answering service companies and (ii) products
which benefitted from better brand recognition in the marketplace and which were
frequently offered at lower retail prices than the Company's products.
5. Control by Geotek. On August 21, 1995, Geotek acquired 3,701,919
newly issued shares of Common Stock and 200,000 Warrants as partial
consideration for its sale to the Company of its approximately 68% interest in
Speech Design and 99% interest in Bogen. The 3,701,919 shares of Common Stock
issued to Geotek constitute approximately 64% of the total outstanding shares of
the Company's Common Stock (which excludes the 3,660,000 shares of Common Stock
issuable upon exercise of the outstanding Warrants). Moreover, until at least
October 30, 1997 and up to April 30, 1998, Geotek will have a preemptive right
to own at least 51% of the issued and outstanding shares of Common Stock. Until
such time, if the Company issues additional shares of Common Stock (including
any shares issued upon exercise of the 3,660,000 outstanding Warrants) and if,
as a result, Geotek's ownership in the Company would fall below 51%, then the
Company is required to grant to Geotek rights to purchase additional shares of
the Company's Common Stock at the market price in order to enable Geotek to
retain a 51% equity interest in the Company. Geotek also has the right to
purchase its pro rata share of any newly issued Common Stock. As a controlling
stockholder, Geotek has designated three of its officers to serve on the
Company's Board of Directors, which is composed of a total of seven members.
Geotek may, at its option, increase the number of directors to nine and
designate an additional director. As a result, Geotek will be able to control
the affairs and policies of the Company for the foreseeable future.
6. No Dividends. The anticipated capital requirements of the Company are
such that its earnings will likely be applied to such requirements. Therefore,
the purchasers of the Shares offered hereby may not expect to realize a return
of their investment in the Company's securities in the form of dividends in the
foreseeable future, if ever.
7. Economic Conditions. The industry in which the Company operates is
highly sensitive to general economic conditions. A depressed economic condition
could result in a decline in demand for the Company's products and thereby have
a material adverse effect on the Company's operations.
8. Limited Patent Protection. While patent applications have been filed
and are pending with respect to several of the Company's products, there can be
no assurance that such patents, if granted, will provide the Company with
significant protection. Others could seek to challenge the patents or attempt
to produce like items using different designs or mechanical approaches.
9. Changing Technology. Advances in DSP (digital sound production)
technology are creating opportunities for developers of equipment to offer
better performance at a lower cost. In addition, some of the features of
Bogen's products are being offered in new generations of competitive products.
The Company's ability to compete successfully may depend in substantial measure
on its ability to develop or acquire new or improved equipment, techniques and
products and/or to modify and upgrade its existing equipment, techniques and
products, none of which can be assured.
10. Foreign Operations. A significant portion of the Company's existing
business and expansion potential is in foreign markets. Consequently, the
Company is or may be exposed to various risks, including currency fluctuations,
changes in trade regulations or enforcement policies with respect thereto, or
political instability in certain regions, that affect only international
business operations.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the Shares
offered hereby. The Selling Stockholders will receive all of the net proceeds
from the sale of the Shares offered hereby.
-6-
<PAGE>
SELLING STOCKHOLDERS
The following persons are current and former officers and directors of the
Company, each of whom is eligible to sell pursuant to this Prospectus the number
of Shares set forth opposite his or her name in the table below. In addition,
eligible participants in the Plan may be issued Shares pursuant to the Plan and
may sell such Shares pursuant to this Prospectus.
<TABLE>
<CAPTION>
Pre-Offering Post-Offering
--------------------------- ---------------------------
Total Total
Number Number of
of Shares Shares
Beneficially Percentage Shares Beneficially Percentage
Selling Stockholders Owned(1) of Class(2) Offered Owned(3) of Class(2)
- -------------------- ------------ ----------- ------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Zvi Peled, President and CEO 175,000 2.95% 175,000 0 0
of the Company
Menashe Ben-David, 66,667 1.12% 66,667 0 0
Executive Vice President of
Bogen Communications, Inc.
Yoav M. Cohen, CFO and 50,000 * 50,000 0 0
Secretary of the Company
Leonard Lodish, Director of 10,000 * 10,000 0 0
the Company
David Jan Mitchell, Director of 180,001 3.12% 10,000 170,000 2.95%
the Company (4)
David Chambers 50,000 * 50,000 0 0
Thomas R. Cowherd 50,000 * 50,000 0 0
Giora Eyran 50,000 * 50,000 0 0
Ronen Sacher 26,667 * 26,667 0 0
Thomas Stuart 23,334 * 23,334 0 0
Eran Nevo 15,000 * 15,000 0 0
Dov Gal 11,667 * 11,667 0 0
Gilbert DeLiso 10,000 * 10,000 0 0
Silvano Desiderio 10,000 * 10,000 0 0
Frank J.DiPalma 10,000 * 10,000 0 0
Bruce Doremus 10,000 * 10,000 0 0
Ernest Ketterer 10,000 * 10,000 0 0
Michael Lynes 10,000 * 10,000 0 0
Thomas Parker 10,000 * 10,000 0 0
Thomas Silvestri 10,000 * 10,000 0 0
Christopher Wildfoerster 10,000 * 10,000 0 0
William Gagliardo 5,000 * 5,000 0 0
Loretta Larsen 5,000 * 5,000 0 0
Marcus Muncy 5,000 * 5,000 0 0
Luis Riveros 5,000 * 5,000 0 0
Eligible Participants in the 605,000 9.36% 605,000 0 0
Plan (5)
_________________________________
</TABLE>
-7-
<PAGE>
* Indicates less than one percent (1%).
(1) Assumes exercise of all options to purchase Shares granted to the
above-listed Selling Stockholders.
(2) These percentages are calculated in accordance with Section 13(d) of the
Securities Exchange Act of 1934, as amended, and the rules promulgated
thereunder based on 5,758,850 shares of Common Stock outstanding as of
February 4,1997.
(3) Assumes offer and sale of all Shares eligible to be offered and sold
hereby by the Selling Stockholders.
(4) Includes 75,001 shares directly owned by Mr. Mitchell and 95,000 shares
beneficially owned by EGAC II, of which Mr. Mitchell is a one-third owner
and, therefore, may be deemed to beneficially own all of the securities
beneficially owned by EGAC II (an aggregate total of 95,000 shares).
(5) Assumes issuance of all shares eligible to be issued under the Plan.
-8-
<PAGE>
PLAN OF DISTRIBUTION
The Common Stock is listed for trading on the AMEX. The sale of the Shares
offered hereunder is not being underwritten. The Shares covered by this
Prospectus may be offered and sold by the Selling Stockholders from time to time
on the AMEX through broker-dealers selected by the Selling Stockholders at
market prices prevailing at the time of sale, in private transactions at
negotiated prices or otherwise. It is anticipated that such transactions will
be effected without payment of any underwriting commissions or discounts, other
than brokers' commissions or fees customarily paid in connection with such
transactions, which commissions and fees will be borne by the Selling
Stockholders.
The Company has agreed to bear the costs of registering the Shares offered
hereby under the Securities Act, but will not receive any of the proceeds from
the sale of such Shares.
There is no assurance that the Selling Stockholders will sell any or all of
the Shares offered hereby.
LEGAL MATTERS
The legality of the Shares offered hereby has been passed upon for the
Company by Klehr, Harrison, Harvey, Branzburg & Ellers, Philadelphia,
Pennsylvania.
EXPERTS
The consolidated financial statements and schedule of the Company appearing
in the Company's 1995 Annual Report have been audited by Coopers & Lybrand
L.L.P., independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements and schedules have been incorporated herein by reference in reliance
upon such report given upon the authority of such firm as experts in accounting
and auditing.
-9-
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESMAN OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED IN THIS PROSPECTUS IN
CONNECTION WITH THE OFFERING DESCRIBED HEREIN AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY A SECURITY OTHER THAN THE
SHARES OF COMMON STOCK OFFERED HEREBY, NOR DOES IT CONSTITUTE AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR
ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO
THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
------------------------
Page
----
Available Information..................................................... 2
Incorporation of Certain
Documents by Reference................................................... 2
The Company................................................................ 4
Risk Factors............................................................... 5
Use of Proceeds............................................................ 6
Selling Stockholders....................................................... 7
Plan of Distribution....................................................... 9
Legal Matters.............................................................. 9
Experts.................................................................... 9
1,253,335 Shares
BOGEN COMMUNICATIONS
INTERNATIONAL, INC.
Common Stock
----------------------
PROSPECTUS
----------------------
February 4, 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934 are
incorporated into this Registration Statement by reference:
1. The Company's Annual Report on Form 10-K (as amended on
Form 10-K/A) for the fiscal year ended December 31, 1995;
2. The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, June 30, 1996 and September 30, 1996; and
3. The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated September 27, 1995,
including all amendments and reports filed for the purpose of updating such
description.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15 (d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
completion or termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained in a document, all or a portion of
which is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document, which also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection
with such action, suit or proceeding, provided that such person acted in good
faith and in a manner such person reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any criminal
action or proceeding, had no reasonable cause to believe such person's conduct
was unlawful. A Delaware corporation may indemnify directors, officers,
employees and other agents of such corporation in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the person to be indemnified has been
adjudged to be liable to the corporation Where a director, officer, employee
or agent of the corporation is successful on the merits or otherwise in the
defense of any action, suit or proceeding referred to above or in defense of
any claim, issue or matter therein, the corporation must indemnify such person
against the expenses (including attorneys' fees) which he or she actually and
reasonably incurred in connection therewith.
II-1
<PAGE>
The Company's By-laws and Certificate of Incorporation, as amended,
contain provisions that provide for indemnification of officers and directors,
and their heirs and distributees, to the full extent permitted by, and in the
manner permissible under, the DGCL.
As permitted by Section 102(b)(7) of the DGCL, the Company's
Certificate of Incorporation, as amended, contains a provision eliminating the
personal liability of a director to the registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, subject to certain
exceptions.
Item 7. Exemption from Registration Claimed.
Any restricted securities to be offered or resold pursuant to this
Registration Statement are exempt under Section 4(2) of the Securities Act of
1933, as amended, as a non-public offering of securities.
Item 8. Exhibits.
Exhibit No. Description
- ----------- -----------
4 Bogen Communications International, Inc. 1996 Incentive Stock Option
Plan.
5 Opinion of Klehr, Harrison, Harvey, Branzburg & Ellers with respect
to the legality of the shares of Common Stock being registered
hereunder.
23 Consent of Coopers & Lybrand L.L.P., independent auditors, with
respect to the consolidated financial statements and schedules of
Bogen Communications International, Inc.
24 Powers of Attorney (included in the signature pages hereto).
Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that paragraphs (a) (1)(i) and (a) (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Company pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
II-2
<PAGE>
(4) That, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Company's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to its Certificate of Incorporation, its by-laws, or
otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question of whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ramsey, State of New Jersey, on this 3rd day of
February, 1997.
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
BY: /s/ Zvi Peled
____________________________
Zvi Peled, President
and Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned officers and directors of Bogen Communications
International, Inc. whose signature appears below hereby appoints Zvi Peled,
Yoav M. Cohen and Yaron Eitan, jointly and each individually, as true and lawful
attorneys-in-fact for the undersigned with full power of substitution, to
execute in his name and on his behalf in each capacity stated below, any and all
amendments (including post-effective amendments) to this Registration Statement
as the attorney-in-fact shall deem appropriate, and to cause to be filed any
such amendment (including exhibits thereto and other documents in connection
therewith) to this Registration Statement with the Securities and Exchange
Commission, as fully and to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on this 3rd day of February, 1997.
Signature Title(s) Date
--------- -------- ----
/s/ Yaron Eitan
______________________
Yaron Eitan Chairman of the Board, Chairman of February 4, 1997
the Executive Committee and
Director
______________________
Yoram Bibring Director February __, 1997
/s/ Leonard Lodish
______________________
Leonard Lodish Director February 4, 1997
/s/ Michael McCoy
______________________
Michael McCoy Director February 4, 1997
______________________
David Jan Mitchell Director February __, 1997
/s/ Joram Rosenfeld
______________________
Joram Rosenfeld Director February 4, 1997
<PAGE>
/s/ Yoav Stern
____________________ Director February 4, 1997
Yoav Stern
/s/ Zvi Peled
____________________ President and Chief Executive Officer February 4, 1997
Zvi Peled
/s/ Yoav M. Cohen
____________________
Yoav M. Cohen Secretary and Chief Financial Officer February 4, 1997
(Principal Accounting and Financial
Officer)
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- ------- -----------
4 Bogen Communications International, Inc. 1996 Incentive
Stock Option Plan.
5 Opinion of Klehr, Harrison, Harvey, Branzburg & Ellers with
respect to the legality of the shares of Common Stock being
registered hereunder.
23 Consent of Coopers & Lybrand L.L.P., independent auditors,
with respect to the consolidated financial statements and
schedules of Bogen Communications International, Inc.
<PAGE>
EXHIBIT 4
<PAGE>
BOGEN COMMUNICATIONS INTERNATIONAL INC.
STOCK OPTION PLAN
1. Purpose of the Plan. The purpose of this Stock Option Plan ("Plan")
of Bogen Communications International Inc. (the "Company"), is to promote the
interests of the Company by providing incentives to enable the company to
attract and retain such persons and to encourage them to acquire or increase
their proprietary interest in the Company and to maximize the Company's
performance during the term of their employment or period of service with the
Company.
2. Definitions. As used in the Plan, unless the context requires
otherwise, the following terms shall have the following meanings:
(a) "Board" shall mean the Board of Directors of the Company.
(b) The "Committee" shall mean a committee composed of two or more
members of the Board each of whom shall be "Outside Directors" for the
purpose of Section 162 (m) of the Code.
(c) "Common Stock" shall mean the common stock, par value $.001 per
share of the Company, or if, pursuant to the adjustment provisions set
forth in Section 12 hereof, another security is substituted for the Common
Stock, such other security.
(d) "Fair Market Value" shall mean the fair market value of the
Common Stock on the Grant Date (as hereinafter defined) or other relevant
date. If on such date the Common Stock is listed on a stock exchange or is
quoted on the National Market segment of the Nasdaq Stock Market (the
"National Market"), the Fair Market Value shall be the closing sale price
(or if such price is unavailable, the average of the high bid price and the
low asked price) on such date. If on such date the Common Stock is traded
in the over-the counter market (but not on the National Market), the Fair
Market Value shall be the average of the high bid and the low asked price
on such date (or if there are no reported bid and asked prices on the Grant
Date, then the average between the high bid price and the low asked price
on the next preceding day for which such quotations exist). If the Common
Stock is neither listed or admitted to trading on any stock exchange,
quoted on the National Market or traded in the over-the -counter market,
the Fair Market Value shall be determined in good faith by the Committee in
accordance with generally accepted valuation principles and such other
factors as the Committee reasonably deems relevant.
(e) "Grant Date" shall mean the date on which an Option is granted.
(f) "Option" shall mean the right, granted pursuant to the Plan, to
purchase one or more shares of Common Stock. "Incentive Stock Option"
shall mean an Option granted pursuant to Section 6 hereof. "Nonqualified
Stock Option" shall mean an Option granted pursuant to Section 7 hereof.
<PAGE>
(g) "Optionee" shall mean a person to whom an Option has been granted
under the Plan.
(h) "Participant" shall mean (i) designated officers and other key
employees of the Company or a Subsidiary Corporation (as such term is defined
under Section 424(f) of the Internal Revenue Code of 1986 as amended (the
"Code")), and (ii) members of the Company's Board of Directors, and (iii)
independent contractors and consultants (who may be individuals or entities) who
perform services for the Company.
3. Stock Subject to the Plan. There will be reserved for issuance upon
the exercise of Options granted from time to time under the Plan an aggregate of
1,000,000 shares of Common Stock (subject to adjustment as set forth in Section
11 hereof.) The Board shall determine from time to time whether all or part of
such 1,000,000 shares shall be authorized but unissued shares of Common Stock or
issued shares of Common Stock which shall have been reacquired by the Company
and which are held in its treasury. If any Option granted under the Plan should
expire or terminate for any reason without having been exercised in full, the
shares subject to such Option shall again become available for the grant of
Options under the Plan.
4. Administration of the Plan. The Plan shall be administered by the
Committee.
(a) Subject to the provisions of the Plan, the Committee shall have
full discretion and sole authority:
(i) To designate the Participants to whom Options shall be
granted, to determine whether individual Optionees shall be granted
Incentive Stock Options or Nonqualified Stock Options, to designate
the number of shares to be covered by each of the Options, and to
determine the time or times at which Options shall be granted;
(ii) To determine the exercise price of Options granted
hereunder, subject to Sections 6(a) and 7(a) hereof;
(iii) To interpret the Plan;
(iv) To promulgate, amend and rescind rules, regulations,
agreements and instruments relating to the Plan, provided, however,
that no such rules or regulations shall be inconsistent with any of
the terms of the Plan;
(v) To subject any Option to such additional terms and
conditions (not inconsistent with the Plan) as may be specified when
granting the Option, including without limitation additional
restrictions or conditions on the exercise of an Option;
(vi) To determine circumstances upon which Options shall become
immediately exercisable and to accelerate the exercisability of any
Option; and
(vii) To make all other determinations in connection with the
administration of the Plan.
<PAGE>
(b) The Committee's interpretations of the Plan and all
determinations made by the Committee pursuant to the powers vested in it
hereunder shall be conclusive and binding on all persons having interests
in the Plan or in any Option granted under the Plan.
(c) Each member of the Committee shall be indemnified and held
harmless by the Company against any cost or expense (including counsel
fees) reasonably incurred by him or her, or liability (including any sum
paid in settlement of a claim with the approval of the Company) arising out
of any act or omission to act in connection with the Plan, unless arising
out of such member's own fraud or bad faith, to the extent permitted by
applicable law. Such indemnification shall be in addition to any rights of
indemnification the members may have as directors or otherwise under the
Certificate of Incorporation or By-Laws of the Company, any agreement of
shareholders or disinterested directors or otherwise.
5. Eligibility. Officers and other employees of the Company or a
Subsidiary Corporation, non-employee members of the Board, and independent
contractors and consultants who perform services for the Company shall be
eligible to participate in the Plan. Only Participants who are officers or
other employees of the Company or a Subsidiary Corporation shall be eligible to
receive Incentive Stock Options. All Participants shall be eligible to receive
Nonqualified Stock Options.
6. Incentive Stock Options. The following provisions shall apply solely
with respect to Options which are designated by the Committee as "Incentive
Stock Options" at the time of grant:
(a) Option Exercise Price. The price at which shares of Common Stock
shall be purchased upon exercise of any Incentive Stock Option shall be not
less than the Fair Market Value of such shares on the Grant Date, except
that if on the Grant Date an Optionee owns Common Stock (as determined
under section 424(d) of the Code) possessing more than 10% of the total
combined voting power of all classes of stock of the Company or of the
Company's Parent Corporation (as such term is defined under Section 424(e)
of the Code), if any, or any Subsidiary Corporations, then the price at
which shares of Common Stock shall be purchased upon exercise of an
Incentive Stock Option granted to such Optionee shall not be less than 110%
of the Fair Market Value of such shares on the Grant Date and,
notwithstanding Section 6(b) hereof, such Incentive Stock Option shall
cease to be exercisable five (5) years after the Grant Date.
(b) Expiration. Except as otherwise provided in Sections 6(a) and 11
hereof, each Incentive Stock Option granted hereunder shall cease to be
exercisable ten years after the date on which it is granted.
(c) Restriction on Exercise. The Fair Market Value (as determined on
the Grant Date) of Common Stock with respect to which Incentive Stock
Options are exercisable for the first time by any person during any
calendar year (under this Plan and all other plans of the Company and its
Subsidiary Corporations) cannot be greater than $100,000.
<PAGE>
7. Nonqualified Stock Options. The following provision shall apply with
respect to Options which are designated by the Committee as "Nonqualified Stock
Options" at the time of grant:
(a) Option Exercise Price. The price at which shares of Common Stock
shall be purchased upon exercise of a Nonqualified Stock Option shall be
determined by the Committee.
(b) Expiration. Except as otherwise provided in Section 11 hereof,
each Nonqualified Stock Option granted hereunder shall cease to be
exercisable ten years after the Grant Date.
(c) Designation. Any Option which is not designated by the Committee
as an Incentive Stock Option shall automatically be deemed to be a
Nonqualified Stock Option.
8. Vesting of Option. The vesting period, if any, for all Options
granted hereunder shall commence on the Grant Date and shall end on the date or
dates, determined by the Committee.
9. Method of Exercise. Optionees may exercise their Options from time to
time by giving written notice to the Company. The date of exercise shall be the
date on which the Company receives such notice. Such notice shall be on a form
furnished by the Company and shall state the number of shares to be purchased
and the desired closing date, which date shall be at least fifteen days after
the giving of such notice, unless an earlier date shall have been mutually
agreed upon. At the closing, the Company shall deliver to the Optionee (or
other person entitled to exercise the Option) at the principal office of the
Company, or such other place as shall be mutually acceptable, a certificate or
certificates for such shares against payment in full of the Option price for the
number of shares to be delivered, such payment to be by a certified or bank
cashier's check and/or, if permitted by the Committee in its discretion, by
transfer to the Company of capital stock of the Company having a Fair Market
Value on the date of exercise equal to the excess of the purchase price for the
shares purchased over the amount of any such certified or bank cashier's check.
If the Optionee (or other person entitled to exercise the Option) shall fail to
accept delivery of and pay for all or any part of the shares specified in his
notice when the Company shall tender such shares to him, his right to exercise
the Option with respect to such unpurchased shares may be terminated.
10. Termination of Employment. Except as set forth below, in the event
that an Optionee's employment terminates for any reason, any Options then
exercisable shall automatically terminate sixty days after the date on which
such employment terminates.
(a) In the event that an Optionee's employment terminates by reason
of retirement, the Committee shall have the right to extend such Optionee's
Options until the earlier of (x) three months after the date of retirement
or (y) the date on which such Options would terminate pursuant to Sections
6(a), 6(b) and 7(b) hereof.
(b) In the event that an Optionee's employment terminates by reason
of disability, an Option exercisable by him shall terminate one year after
the date of disability
<PAGE>
of the Optionee, but in any event not later than the date on which such
Options would terminate pursuant to Sections 6(a), 6(b) and 7(d) hereof.
(c) In the event that an Optionee's employment terminates by reason
of death, an Option exercisable by him shall terminate one year after the
date of death, but in any event not later than the date on which such
Options would terminate pursuant to Sections 6(a), 6(b) and 7(b) hereof.
During such time after death, an Option may only be exercised by the
Optionee's personal representative, executor or administrator, as the case
may be. No exercise permitted by this Section 10 shall entitle an Optionee
or his personal representative, executor or administrator to exercise any
Option which is not (on the date of exercise) then exercisable.
11. Changes in Capital Structure. In the event that, by reason of a stock
dividend, recapitalization, reorganization, merger, consolidation,
reclassification, stock split-up, combination of shares, exchange of shares, or
the like, the outstanding shares of Common Stock of the Company are hereafter
increased or decreased, or changed into or exchanged for a different number or
kind of shares or other securities of the Company or of any other corporation,
then appropriate adjustments shall be made by the Board to the number and kind
of shares reserved for issuance under the Plan upon the grant and exercise of
Options. In addition, the Board shall make appropriate adjustments to the
number and kind of shares subject to outstanding Options, and the purchase price
per share thereunder shall be appropriately adjusted consistent with such
change. In no event shall fractional shares be issued or issuable pursuant to
any adjustment made under this Section 11. The determination of the Board as to
any adjustment shall be final and conclusive.
12. Mandatory Exercise. Notwithstanding anything to the contrary set
forth in the Plan, in the event that:
(a) the Company should adopt a plan of reorganization pursuant to
which it shall merger into, consolidate with, or sell its assets to, any
other corporation or entity (an "Acquiring Entity"), the Company may give
an Optionee written notice thereof :
(i) requiring such Optionee to exercise his or her Options
within thirty days after receipt of such notice, (including any
unvested Options which would, except for this Section 12, otherwise be
unexercisable at that date); or
(ii) requiring such Optionee to consent to the conversion of such
Options into an option to purchase the same number of shares of the
Acquiring Entity's common stock as would have been received by the
Optionee if the Optionee had exercised such Option; or
(iii) deeming such Options to have been exercised, in which
case the Optionee shall be entitled to receive the same consideration
per share as received by other holders of the Company's stock but
reduced by an amount equal to the Fair Market Value on the Grant
Date.
<PAGE>
(b) the Company should adopt a plan of complete liquidation, the
Company shall give an Optionee written notice thereof requiring such
Optionee to exercise his or her Options within thirty days after receipt of
such notice, (including any invested Options which would, except for this
Section 12, otherwise be unexercisable at that date).
Those Options which the Company requests to be exercised and which shall
not have been exercised in accordance with the provisions of the Plan by the end
of such 30 day period shall automatically lapse irrevocably and the Optionee
shall have no further rights with respect to such Options.
13. Option Grant. Each grant of an Option under the Plan will be
evidenced by a document in such form as the Committee may from time to time
approve. Such document will contain such provisions as the Committee may in its
discretion deem advisable, including without limitation additional restrictions
or conditions upon the exercise of an Option. The Committee may require an
Optionee, as a condition to the grant or exercise of an Option or the issuance
or delivery of shares upon the exercise of an Option or the payment therefor, to
make such representations and warranties and to execute and deliver such notices
of exercise and other documents as the Committee may deem consistent with the
Plan or the terms and conditions of the Option Agreement. Not in limitation of
any of the foregoing, in any such case referred to in the preceding sentence the
Committee may also require the Optionee to execute and deliver documents
(including the investment letter described in Section 14), containing such
representations, warranties and agreements as the Committee or counsel to the
Company shall deem necessary or advisable to comply with any exemption from
registration under the Securities Act of 1933, as amended, the (the "Securities
Act") any applicable State securities laws, and any other applicable law,
regulation or rule.
14. Investment Letter. If required by the Committee, each Optionee shall
agree to execute a statement directed to the Company, upon each and every
exercise by such Optionee of any Options, that shares issued thereby are being
acquired for investment purposes only and not with a view to the redistribution
thereof, and containing an agreement that such shares will not be sold or
transferred unless either (1) registered under the Securities Act, or (2) exempt
from such registration in the opinion of Company counsel. If required by the
Committee, certificates representing shares of Common Stock issued upon exercise
of Options shall bear a restrictive legend summarizing the restrictions on
transferability applicable thereof.
15. Requirement of Law. The granting of Options, the issuance of shares
upon the exercise of an Option, and the delivery of shares upon the payment
therefore shall be subject to compliance with all applicable laws, rules, and
regulations. Without limiting the generality of the foregoing, the Company
shall not be obligated to sell, issue or deliver any shares unless all required
approvals from governmental authorities and stock exchanges shall have been
obtained and all applicable requirements of governmental authorities and stock
exchanges shall have been complied with.
16. Tax Withholding. The Company, as and when appropriate, shall have the
right to require each Optionee purchasing or receiving shares of Common Stock
under the Plan to pay any
<PAGE>
federal, state, or local taxes required by law to be withheld or to take
whatever action it deems necessary to protect the interests of the Company in
respect to such tax obligations.
17. Nonassignability. An Optionee may transfer the rights granted
hereunder by (i) bona fide gift, (ii) will or by the laws of descent and
distribution or, (iii) pursuant to a qualified domestic relations order as
defined under the Code or Title I of ERISA or the rules thereunder. Upon the
death of an Optionee, the personal representative or other person entitled to
succeed to the rights of the Optionee ("Successor Optionee") may exercise such
rights. A Successor Optionee shall furnish proof satisfactory to the Company of
such person's right to receive the Option under the Optionee's will or under the
applicable laws of descent and distribution.
18. Optionee's Rights as Shareholder and Employee. An Optionee shall have
no rights as a shareholder of the Company with respect to any shares subject to
an Option until the Option has been exercised and the certificate with respect
to the shares purchased upon exercise of the Option has been duly issued and
registered in the name of the Optionee. Nothing in the Plan shall be deemed to
give an employee any right to continued employment nor shall it be deemed to
give any employee any other right not specifically and expressly provided in the
Plan.
19. Termination and Amendment.
(a) Amendment. The Board may amend or terminate the Plan at any
time, subject to the limitation that
the approval by the shareholders of the Company shall be required
in respect of any amendment that (A) materially increases the benefits
accruing to participants under the Plan, (B) increases the aggregate
number of shares of Common Stock that may be issued or transferred
under the Plan (other than by operation of Section 11 above), (C)
increases the maximum number of shares of Common Stock for which any
Optionee may be granted options under this Plan or (D) materially
modifies the requirements as to eligibility for participation in the
Plan; (E) modifies the provisions for determining the Fair Market
Value; and
(ii) the Board may not amend the Plan if such amendment would
cause the Plan, any Option or the exercise of any right under the Plan
to fail to comply with the requirements of Section 422 of the Code
including, without limitation, a reduction of the option price or an
extension of the period during which an Incentive Stock Option may be
exercised.
(b) Termination of Plan. The Plan shall terminate on the tenth
anniversary of its effective date (as set forth in Section 20 below) unless
earlier terminated by the Board or unless extended by the Board with
approval of the stockholders.
(c) Termination and Amendment of Outstanding Grants. Except as
otherwise provided in Section 12 hereof or in any document evidencing the
grant of an Option hereunder, a termination or amendment of the Plan that
occurs after an Option has been granted shall not result in the termination
or amendment of the Option unless the Optionee
<PAGE>
consents or unless the Committee acts under Section 21(b) below. The
termination of the Plan shall not impair the power and authority of the
Committee with respect to an outstanding Option. Whether or not the Plan
has terminated, an outstanding Option may be terminated or amended under
Section 21(b) below or may be amended by agreement of the Company and the
Optionee which is consistent with the Plan.
20. Shareholder Approval. This Plan is subject to and no Options granted
hereunder shall be exercisable until the approval of this Plan by the holders of
a majority of the shares of stock of the Company present or represented in proxy
in a vote at a duly held meeting of the shareholders of the Company within
twelve months after the date of the adoption of the Plan by the Board. If the
Plan is not so approved by shareholders, the Plan and all Options granted
hereunder shall automatically terminate and be of no force and effect.
Subsequent to such approval, the effective date of the Plan shall be December
13, 1996.
21. Miscellaneous.
(a) Substitute Grants. The Committee may grant an Option to an
employee or a non-employee director of another corporation, if such person
shall become an employee or non-employee director of the Company, or a
Subsidiary Corporation, by reason of a corporate merger, consolidation,
acquisition of stock or property, reorganization or liquidation involving
the Company or a Subsidiary Corporation and such other corporation. Any
Option so granted shall be made in substitution for a stock option granted
by the other corporation, but the terms and conditions of the Option so
granted may vary from the terms and conditions required by the Plan and
from those of the Option granted by the other corporation. The Committee
shall prescribe the provisions of the Option so granted.
(b) Compliance with Law. The Plan, the exercise of Option and the
obligations of the Company to issue shares of Common Stock upon exercise of
Options shall be subject to all applicable laws and required approvals by
any governmental or regulatory agencies. With respect to persons subject
to Section 16 of the Exchange Act, it is the intent of the Company that the
Plan and all transactions under the Plan shall comply with all applicable
conditions of Rule 16b-3 or any successor provisions under the Exchange
Act. The Committee may revoke the grant of any Option if it is contrary to
law or modify any Option to bring it into compliance with any valid and
mandatory government regulations. The Committee may also adopt rules
regarding the withholding of taxes on payments to Optionees. The Committee
may, in its sole discretion, agree to limit its authority under this
section.
(c) Sunday or Holiday. In the event, that the time for the
performance of any action or the giving of any notice is called for under
the Plan within a period of time which ends or falls on a Sunday or legal
holiday, such period shall be deemed to end or fall on the next date
following such Sunday or legal holiday which is not a Sunday or legal
holiday.
<PAGE>
EXHIBIT 5
<PAGE>
KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS
1401 Walnut Street
Philadelphia, Pa. 19102
February 4, 1997
Board of Directors
Bogen Communications International, Inc.
50 Spring Street
Ramsey, NJ 07446
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Bogen Communications International, Inc. (the
"Company") in connection with the proposed registration of shares of the
Company's Common Stock, par value $.001 per share (the "Common Stock"), on a
registration statement on Form S-8 being filed by the Company with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "Act"). Such Registration Statement, as it may be amended or
supplemented from time to time, including all exhibits thereto, is referred to
hereinafter as the "Registration Statement."
The shares to be registered (the "Shares") consist of 1,253,335 Shares of
Common Stock issuable upon the exercise of (i) options (the "Plan Options")
granted or to be granted to certain current or former officers, employees and
directors of the Company or its subsidiaries, and independent contractors and
consultants who perform services for the Company or its subsidiaries,
pursuant to the Company's 1996 Incentive Stock Option Plan (the "Plan") and
(ii) options (the "Options") otherwise granted to current or former officers
the Plan Options and the Options are hereafter collectively referred to as
the "Stock Options"). Certain of the Shares may be offered and sold from
time to time for the account of the persons referred to in the Registration
Statement as "Selling Stockholders."
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Board of Directors
February 4, 1997
Page 2
In this regard, we have examined: (i) the Plan; (ii) the award agreements
granting options pursuant to the Plan and otherwise to certain of the current
and former officers and directors, and independent contractors and consultants,
of the Company and its subsidiaries; (iii) the Company's Certificate of
Incorporation and Bylaws, each as amended and as presently in effect; (iv) the
Registration Statement; and (v) such officers' certificates, resolutions,
minutes, corporate records and other documents as we have deemed necessary or
appropriate for purposes of rendering the opinions expressed herein.
In rendering such opinions, we have assumed the authenticity of all
documents and records examined, the conformity with the original documents of
all documents submitted to us as copies and the genuineness of all signatures.
The opinions expressed herein are based solely upon our review of the
documents and other materials expressly referred to above. Other than such
documents and other materials, we have not reviewed any other documents in
rendering such opinions. Such opinions are therefore qualified by the scope of
that document examination.
Based upon and subject to the foregoing, and on such other examination of
law and fact as we have deemed necessary or appropriate in connection herewith,
we are of the opinion that, upon exercise of the Plan Options in accordance with
the provisions of the Plan and in their terms the Shares issued to the
Selling Shareholder will be duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock.
This opinion is limited to the law of the Commonwealth of Pennsylvania, the
Federal law of the United States and the General Corporation Law of the State of
Delaware. Except as expressly otherwise noted herein, this opinion is given as
of the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference made to this firm under the caption
"Legal Matters" in the Prospectus constituting a part of the Registration
Statement. By giving such consent, we do not hereby admit that we fall within
the category of persons whose consent is required pursuant to Section 7 of the
Act.
Very truly yours,
Klehr, Harrison, Harvey, Branzburg & Ellers
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EXHIBIT 23
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Consent of Independent Auditors
We consent to the incorporation by reference to in this Registration
Statement on Form S-8 Plan of our report dated March 21, 1996, on our
audits of the consolidated financial statement of Bogen Communications
International, Inc. included in its Annual Report on Form 10-K as of
December 31, 1995 and 1994 for the years ended December 31, 1995, 1994
and 1993.
We also consent to the reference to our firm under the caption "Experts".
Coopers & Lybrand L.L.P.
New York, New York
February 5, 1997
