Exhibit 10.33
LIMITED ENGAGEMENT AGREEMENT
LIMITED ENGAGEMENT AGREEMENT, effective as of August 31, 1999, by and
between Bogen Communications International, Inc., a Delaware corporation
(together with all its domestic subsidiaries, the "Company"), and Helix Capital
Services Inc. ("Helix"), successor by merger to Helix Capital Services LLC.
W I T N E S S E T H :
WHEREAS, the Company and Helix entered into the Amended and Restated
Mergers and Acquisition Engagement Agreement effective October 1, 1998 (the
"Amended M&A Agreement"); and
WHEREAS, the Company and Helix wish to terminate the Amended M&A Agreement
in its entirety and enter into a Limited Engagement Agreement which covers all
continuing obligations between the parties relating to merger and acquisition
activity.
NOW, THEREFORE, in consideration of the mutual premises contained herein,
the parties hereby agree as follows:
1. TERMINATION OF AMENDED AND RESTATED MERGERS AND ACQUISITION AGREEMENT.
1.1 Termination.
Effective as of August 31, 1999, the Amended M&A Agreement shall be
terminated and of no force and effect and the parties shall have no
remaining liabilities thereunder other than as stated in Section 1.2 below
and other than the obligations set forth in Sections 2.5 (Confidentiality)
and 2.6 (Indemnification) of the Amended M&A Agreement, which shall survive
the termination thereof.
1.2 Remaining Obligations.
Notwithstanding the termination of the Amended M&A Agreement, the
Company shall make the following payments to Helix:
1.2.1 $100,000 for services rendered in connection with the Company's
acquisition of substantially all of the assets of Apogee Sound
Incorporated; and
1.2.2 a fee equal to the amount that would otherwise be payable pursuant to
the Amended M&A Agreement, if, on or prior to December 31, 1999, the
Company acquires substantially all of the assets or stock of, or
merges with, any of the companies listed on Schedule 1 hereto.
2. LIMITED SERVICES
2.1 Brokers Services. If Helix introduces the Company during the term of
this Agreement to any potential acquisition target, and the Company
has not prior to the time of such introduction been in discussions
with, or otherwise transacted business with such acquisition target,
and an M&A Transaction is consummated within six (6) months of such
introduction, then the Company shall pay Helix a Success Fee at the
time of the consummation of such M&A Transaction.
2.2 Financial Services.
If the Company requests any time during the term of this Agreement
Helix's Financial Services in connection with a potential M&A
Transaction and (1) Helix provides such Financial Services and (2)
such M&A Transaction is consummated within 6 months of the Company's
initial request, the Company shall pay Helix a Success Fee at the time
of the consummation of such M&A Transaction.
2.3 Success Fee. For purposes of Sections 2.1 and 2.2 hereof, "Success
Fee" shall mean 3% of the Consideration Paid. The 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 paid in the same consideration as paid or received by the
Company in the M&A Transaction.
2.4 Transaction Timing. An M&A Transaction shall be deemed to have
consummated when Consideration Paid for an M&A Transaction has been
sent to the receiving party, provided that if Consideration Paid shall
be paid in installments, the full amount shall be construed to have
been received upon receipt of the first installment exchanged between
parties to an M&A Transaction.
2.5 Definitions. As used herein, the following terms shall have the
following meanings
2.5.1 The term "Consideration Paid" shall mean all the cash
consideration (including amounts paid in 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
M&A Transaction. The fair market value of any non-cash
consideration delivered in an M&A Transaction will be the
value agreed upon by the Company and Helix prior to the
consummation of the M&A Transaction.
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2.5.2 The term "Financial Services" shall include -
2.5.2.1 Assisting the Company in its determination of
appropriate values to be realized in an M&A Transaction;
2.5.2.2 Advising the Company in the negotiations as to the
form and structure of an M&A Transaction;
2.5.2.3 Advising and assisting the Company's management in
making presentations to the Company's Board of Directors
regarding the M&A Transaction;
2.5.2.4 Other services normally provided by investment banks
in connection with M&A Transaction.
2.5.3 The term "M&A Transaction" shall mean any transaction or
series of transactions (other than the purchase or sale of
assets in the ordinary course of business) whereby, directly
or indirectly, the Company acquires or merges with or into
another entity, or any other similar business transaction or
arrangement between the Company or any of its domestic
subsidiaries and affiliates and a third party, including,
without limitation, a merger, combination or consolidation,
regardless of the accounting or tax treatment of such
transaction.
3. CONFIDENTIALITY. During the term of this Agreement, the Company, on the
one hand, and Helix, on the other hand, may 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 agrees not to disclose Confidential Information of
the other third party other than (i) to its employees, attorneys,
affiliates, representatives and agents to whom disclosure is necessary
in order to carry 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.
3.1 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 it was disclosed 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.
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3.2 Each party hereto covenants and agrees that is 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.
3.3 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
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 3.
4. 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.
4.1 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:
4.1.1 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
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4.1.2 if (but only if) the allocation provided for in Section 4.1.1
is for any reason held to unenforceable, in such proportion as
is appropriate to reflect not only the relative benefits
referred to in Section 4.1.1 but also the relative fault of
the Company and Helix, as well as any other relevant equitable
considerations;
4.1.3 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.
4.1.4 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.
5. TERM. This Agreement shall have a term ending December 31, 1999, except
with respect to the payment of Success Fees earned pursuant to Section 2
of this Agreement and except for Sections 3 and 4 of this Agreement,
which will survive any termination of this Agreement.
6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT GIVING
EFFECT TO CONFLICTS OF LAWS. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR
RELATING TO THIS LETTER AGREEMENT, OTHER THAN AS PROVIDED FOR IN SECTION
3 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.
7. SEVERABILITY. In the event that any provision herein is determined to be
enforceable 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.
8. INDEPENDENT CONTRACTOR. The Company acknowledges and agrees that Helix
has been retained solely as a mergers and acquisitions and financial
advisor to the Company. In such capacity, Helix shall act as an
independent contractor.
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9. 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 this 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 hereof 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.
10. 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
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Att: Xx. X. Xxxxx
In the case of the Company:
Bogen Communications International, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxx X. Xxxxx
Fax: (000) 000-0000
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.
11. ENTIRE AGREEMENT. This mutually signed Agreement and attached Schedules
constitute the entire agreement between the parties with respect to the
engagement of Helix contemplated hereby and cancels and superseded all
prior understandings 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.
12. MISCELLANEOUS. 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.
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IN WITNESS WHEREOF, the parties hereto have set their hand on September
1, 1999.
HELIX CAPITAL SERVICES INC.
By: /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title: Managing Partner
BOGEN COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President &
Chief Financial Officer
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