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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. ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇, 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
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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
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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
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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:
▇▇▇▇ ▇▇▇▇▇
Helix Capital Services LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇
IN THE CASE OF BOGEN:
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▇▇▇▇▇ ▇▇▇▇▇
Geotek Communications
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
And:
▇▇▇▇ ▇▇▇▇▇
Bogen Communications International, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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,
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FOR HELIX CAPITAL SERVICES, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
NAME: ▇▇▇▇ ▇▇▇▇▇
TITLE: Principal
Accepted this of August, 1997
FOR BOGEN COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇
TITLE: Chief Financial Officer
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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. ▇▇▇▇ ▇▇▇▇▇, 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
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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
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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
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
IN THE CASE OF BOGEN:
Bogen Communications International, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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
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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/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Principal
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
