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EXHIBIT 10.2
WARRANT PURCHASE AGREEMENT
This WARRANT PURCHASE AGREEMENT ("Agreement") is entered into as of
November 28, 1997, by and between Bogen Communications International, Inc., a
Delaware corporation (the "Company"), and Helix Capital II, LLC (the
"Investor").
SECTION 1. DESCRIPTION OF THE TRANSACTION
The Company agrees to issue as of the date hereof to the Investor a
warrant to purchase 575,885 shares of its authorized but unissued common stock,
$.001 par value per share (the "Common Stock") (in the form attached hereto as
Exhibit A) (the "Warrant"), for an aggregate purchase price of $115,177 (the
"Purchase Price"). Any securities of the Company issued or issuable upon
exercise of the Warrant are referred to as "Warrant Shares."
SECTION 2. REPRESENTATIONS OF THE COMPANY
As part of the basis of this Agreement, the Company represents to the
Investor that on the date hereof:
2.1 ORGANIZATION. The Company and each of its subsidiaries (each a
"Subsidiary") is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, and is
qualified to do business as a foreign corporation in all other jurisdictions
where the failure to so qualify would have a material adverse effect on the
Company.
2.2 CORPORATE POWER. The Company and each Subsidiary has all requisite
power and authority to own its respective properties and to carry on its
respective business as presently conducted and as proposed to be conducted. The
Company has all requisite corporate power and authority to enter into and
perform this Agreement and to carry out the transactions contemplated by this
Agreement.
2.3 AUTHORIZATION. This Agreement and all documents executed pursuant
to this Agreement are valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms. The execution, delivery and
performance of this Agreement and the issuance of the Warrant Shares have been,
or will be upon such issuance, duly authorized by all necessary corporate action
of the Company.
2.4 CAPITALIZATION. All of the presently outstanding shares of capital
stock of the Company have been validly authorized and issued and are fully paid
and nonassessable. The Company has authorized and reserved for issuance upon
exercise of the Warrants, Common Stock sufficient for the exercise of the
Warrants. Warrant Shares will be, when and if issued, validly authorized and
issued, fully paid and nonassessable and free of all encumbrances and
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restrictions, except restrictions on transfer imposed by applicable securities
laws and/or this Agreement.
2.5 PREEMPTIVE RIGHTS. There are no preemptive rights affecting the
issuance or sale of the Company's capital stock.
2.6 EFFECT OF TRANSACTIONS. The Company's execution and delivery of
this Agreement, and its performance of the transactions contemplated by this
Agreement, will not, whether through consummation hereof, by the lapse of time,
the giving of notice or otherwise, (a) violate any judgment, decree or order, or
any material contract or obligation of the Company or any Subsidiary, (b)
violate any statute, rule or regulation of any federal, state or local
government or agency applicable to the Company or any Subsidiary, or any
material contract to which any employee of the Company or any Subsidiary is
bound, which violation, in each case, would have a material adverse effect on
the operations or financial condition of the Company, or (c) result in the
imposition of any material lien, charge, security interest or encumbrance upon
any property or assets of the Company or any Subsidiary.
2.7 BROKERAGE. There are no claims for brokerage commissions, finder's
fees or similar compensation in connection with the transactions contemplated by
this Agreement.
2.8 PUBLIC FILINGS. The Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996, and its Quarterly Reports on Form 10-Q for
the three-month periods ended March 31, 1997, June 30, 1997 and September 30,
1997, respectively, as amended, when they were filed with the Commission,
conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
2.9 DISCLOSURE. This Agreement, including the exhibits hereto, do not
contain any untrue statement of material fact or, when taken as a whole, omit
any material fact necessary in order to make the statements contained herein or
therein not misleading.
2.10 CONSENTS, NOTICE. Except for those which have been obtained prior
to the date hereof, no consent, approval, order or authorization of or
declaration, registration or filing with any governmental body or any
nongovernmental person, including, without limitation, any creditor or
shareholder of the Company or any of its Subsidiaries, or any party to a
contract to which the Company or any Subsidiary is a party or any of their
respective assets is subject, is required in connection with the execution or
delivery by the Company of this Agreement, or the performance by the Company of
its obligations hereunder and thereunder, or as a condition to the legality,
validity or enforceability of this Agreement as the sale and issuance of the
Warrants or the Warrant Shares, except for such consents or approvals the
absence of which would not have a material effect on the Company operations,
financial condition or the transactions herein contemplated.
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2.11 LITIGATION. There are no actions, suits, arbitrations,
investigations or proceedings pending, or, to the knowledge of the Company,
threatened against or affecting the Company or any of its Subsidiaries or any of
their properties or rights of any of them. There is no judgment, decree,
injunction, rule or order of any government body or arbitrator outstanding
against the Company or any Subsidiary.
SECTION 3. REPRESENTATIONS AND AGREEMENTS OF THE INVESTOR
As part of the basis of this Agreement, the Investor represents to the
Company that on the date hereof:
3.1 AUTHORIZATION. The Investor has all requisite corporate or other
power and authority to enter into and perform this Agreement and the execution
of this Agreement and the documents executed by the Investor pursuant to this
Agreement have been authorized by all necessary corporate or other action on the
part of the Investor, have been executed and delivered, and constitute valid,
legal, binding agreements of the Investor enforceable against the Investor in
accordance with their terms.
3.2 INVESTMENT PURPOSE. The Investor is acquiring the Warrants for its
own account, for investment, and not with a view to any "distribution" within
the meaning of the Securities Act of 1933, as amended (the "Securities Act") .
The Investor has no intention to make any transfer of the Common Stock or
Warrants in violation of the Securities Act. No broker-dealer acted on behalf of
the Investor in connection with the offer or sale of the Warrants.
3.3 TRANSFER RESTRICTIONS. The Investor understands that because the
Warrants and Warrant Shares have not been registered under the Securities Act,
it cannot dispose of any or all of the Warrant Shares unless such Warrants and
Warrant Shares are subsequently registered under the Securities Act or
exemptions from such registration are available and that the Warrants and
Warrant Shares will contain legends reflecting such limitations. The Investor
acknowledges and understands that, except as provided in Section 4 of this
Agreement with respect to the Registerable Securities (as defined in Section 4.1
hereof), it has no independent right to require the Company to register the
Warrant Shares. The Investor understands that the Company may, as a condition to
the transfer of any of the Warrants or Warrant Shares, require that the request
for transfer be accompanied by an opinion of counsel, in form and substance
satisfactory to the Company, to the effect that the proposed transfer does not
result in a violation of the Securities Act, unless such transfer is covered by
an effective registration statement under the Securities Act.
3.4 SOPHISTICATION. The Investor is knowledgeable and experienced in
business and financial matters and capable of evaluating the merits and risks of
the investment in the Warrants, is able to bear the economic risk of loss of its
investment in the Company, has been granted the opportunity to make a thorough
investigation of the affairs of the Company, and has availed itself of such
opportunity either directly or through its authorized representatives.
3.5 PRIVATE OFFERING. The Investor has been advised that the Warrants
have not been and are not being registered under the Securities Act or under the
"blue sky" laws of any jurisdiction and that the Company in issuing the Warrants
is relying upon, among other things, the representations and warranties of such
Investor contained in this SECTION 3 in concluding that such issuance is a
"private offering" and does not require compliance with the registration
provisions of the Securities Act. The Investor is an "accredited investor"
within the meaning of Rule 501 under the Securities Act.
SECTION 4. REGISTRATION RIGHTS
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4.1 DEFINITIONS. For purposes of this Section 4: (a) the term
"Registrable Securities" means the Warrant Shares; and (b) the term "Holder"
means any person owning or having the right to acquire Registrable Securities.
4.2 REQUEST FOR REGISTRATION.
(a) If at any time after the earlier of (a) the two year anniversary of
the date hereof or (b) the date on which a Change of Control (as such term is
defined in the Warrant) is effected, the Company shall receive a written request
from Holders of a majority of the Registrable Securities then outstanding that
the Company file a registration statement under the Securities Act, then the
Company shall use its best efforts to effect as soon as practicable, after the
receipt of such request, the registration under the Securities Act of the number
of such Registrable Securities which such Holders (and any other Holders who may
also elect to participate within 10 days thereafter) request to be registered.
Without the prior written consent of the Holders requesting a registration,
neither the Company, nor any other person (other than the other Holders), shall
be entitled to include Common Stock in the registrations made under this Section
4.2. The Company is obligated to effect two completed and effective
registrations pursuant to this Section 4.2.
(b) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 4.2, a
certificate signed by an executive officer of the Company stating that in the
good faith judgment of the Board of Directors of the Company (excluding
affiliates of the Investor) it would be seriously detrimental to the Company and
its stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than one hundred
twenty (120) days after receipt of the request of the Holders; provided,
however, that the Company may not utilize this right more than once in any
twelve month period; provided, further that the Company may not utilize this
right if the Holders requesting registration do so at any time within the 60-day
period following the date on which a Change of Control is effected.
4.3 INCIDENTAL REGISTRATION. If (but without any obligation to do so)
the Company proposes at any time after the earlier of (a) the two year
anniversary of the date hereof or (b) the date on which a Change of Control is
effected, to register (including for this purpose a registration effected by the
Company for shareholders other than the Holders) any shares of its capital stock
or other securities under the Securities Act (other than a registration relating
solely to securities issued in connection with mergers, acquisitions, exchange
offers, dividend reinvestment plans, employee stock ownership plans or stock
option plans, thrift plans, pension plans or other employee benefit plans, or a
registration on any form which does not include substantially the same
information, other than information related to the selling shareholders or their
plan of distribution, as would be required to be included in a registration
statement covering the sale of the Registrable Securities), the Company shall,
at such time, promptly give each Holder written notice of such registration.
Upon the written request of each Holder given within twenty (20) days after
mailing of such notice by the Company, the Company shall, subject to the
provisions of Section 4.8, cause to be registered under the Securities Act all
of the Registrable Securities that each such Holder has requested to be so
registered. If at any time after giving such written notice of its intention to
register any of its securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register such securities, at its sole
election, the Company may give written notice of such determination to each
Holder and thereupon shall be relieved of its obligation to register any Common
Stock in connection with such registration.
4.4 RESERVED.
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4.5 OBLIGATIONS OF THE COMPANY. Whenever required under this Section 4
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for up to one hundred eighty (180) days.
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders, provided
that the Company shall not be required to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
(g) In the case of an underwritten public offering, furnish, at the
request of any Holder requesting registration of Registrable Securities pursuant
to this Section 4, on the date that such Registrable Securities are delivered to
the underwriters for sale in connection with a registration pursuant to this
Section 4 (i) an opinion, dated such date, of the counsel representing the
Company for the purposes of such registration, in such form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in such form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters.
4.6 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 4 with
respect to the Registrable Securities of any selling Holder that such Holder
shall have furnished to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
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4.7 EXPENSES OF REGISTRATION. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to this Section 4, including without limitation, all
registration, filing and qualification fees, printers and accounting fees and
fees and disbursements of counsel for the Company shall be borne by the Company;
provided, however, in the event the Company includes in any registration
statement shares for sale for its own account, it shall pay the pro rata portion
of any underwriting discounts and commissions attributable to such securities
for its own account. Notwithstanding the immediately preceding sentence, the
Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 4.2 if the registration request is
subsequently withdrawn at the request of the Holders of a majority of the
Registrable Securities to be registered (in which case all Holders participating
in such withdrawn registration shall bear such expenses pro rata, but shall also
be entitled to reassert such one demand registration pursuant to Section 4.2);
provided, however, that if at the time of such withdrawal the Holders have
learned of a material adverse change in the condition, business, or prospects of
the Company from that known to the Holders at the time of their request, then
the Holders shall not be required to pay any of such expenses and shall retain
their rights pursuant to Section 4.2
4.8 UNDERWRITING REQUIREMENTS; CUTBACK. In connection with any offering
involving an underwriting of shares being issued by and sold on behalf of the
Company, the Company shall not be required under Section 4.3 to include any of
the Holders' securities in such underwriting unless they accept the customary
and reasonable terms of the underwriting as agreed upon between the Company and
the underwriters selected by it, and then only in such quantity as will not, in
the opinion of the underwriters, jeopardize the success of the offering by the
Company. If the total amount of securities, including Registrable Securities,
requested to be included in such offering exceeds the amount of securities that
the underwriters reasonably believe compatible with the success of the offering,
then Holders may include in the offering only that number of such Registrable
Securities which the underwriters believe will not jeopardize the success of the
offering (the securities so included to be apportioned pro rata among the
Holders according to the total amount of securities entitled to be included
therein owned by each Holder or in such other proportions as shall mutually be
agreed to by such Holders); provided, however, Registrable Securities shall be
excluded from such offering only pro rata to the same extent as securities
proposed to be included for the account of other persons other than the Company
in such offering.
4.9 INDEMNIFICATION AND CONTRIBUTION. In the event any Registrable
Securities are included pursuant to a registration statement under this Section
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(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Securities Act) and
each person if any, who controls such Holder or underwriter within the meaning
of the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several) to which they or any of them may become subject
under the Securities Act, the Exchange Act or any other federal or state law,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation"): (i) any untrue statement
or alleged untrue statement of a material fact contained in such registration
statement, including any preliminary prospectus (but only if such is not
corrected in the final prospectus) contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading (but only if such is not corrected in the final
prospectus), or (iii) any violation or alleged violation by the Company in
connection with the registration of Registrable Securities under the Securities
Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably incurred by them in
connection with investigating or defending any
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such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 4.9(a) shall not apply. to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld), nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will indemnify
and hold harmless the Company, each of its directors, each of its officers who
has signed the registration statement, each person, if any, who controls the
Company within the meaning of the Securities Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims.
damages or liabilities, joint or several, to which any of the foregoing persons
may become subject, under the Securities Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this Section 4.9(b), in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 4.9(b) shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Holder, which consent shall not be unreasonably withheld;
provided that in no event shall any indemnity under this Section 4.9(b) exceed
the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
4.9 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 4.9, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel selected by the
indemnifying party, provided that the indemnified party consents to such
counsel, such consent to be not unreasonably withheld; provided, however, that
an indemnified party or parties shall have the right to retain their own
counsel, with the reasonable fees and expenses of one such counsel to be paid by
the indemnifying party with respect to all indemnified parties, if
representation of such indemnified party or parties by the counsel retained by
the indemnifying party, in the opinion of counsel appointed by the indemnified
party or parties, would be inappropriate due to actual or potential differing
interests between such indemnified party or parties and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 4.9, but the omission so to deliver written notice to the
indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 4.9.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in Section 4.9(a) is
applicable but for any reason is held to be unavailable from the Company with
respect to all Holders or any Holder, the Company and the Holder or Holders, as
the case may be, shall contribute to the aggregate losses, claims, damages and
liabilities (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted) to which the Company and one or more of the
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Holders may be subject in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand, and the Holder or Holders on the
other, in connection with statements or omissions which resulted in such losses,
claims, damages or liabilities. Notwithstanding the foregoing, no Holder shall
be required to contribute any amount in excess of the net proceeds received by
such Holder from the Registrable Securities as the case may be, sold by such
Holder pursuant to the registration statement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each person, if any, who controls a Holder within
the meaning of the Securities Act shall have the same rights to contribution as
such Holder.
(e) The obligations of the Company and Holders under this Section 4.9
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 4 or otherwise.
4.10 "MARKET STAND-OFF AGREEMENT". The Investor hereby agrees that for
a period (the "Stand-Off Period") of (a) 90 days, or (b) if requested by the
underwriter of Common Stock or other securities of the Company, such longer
period of time not to exceed 180 days, following the effective date of a
registration statement of the Company filed under the Act covering securities to
be sold by the Company, it shall not, directly or indirectly sell, offer to
sell, contract to sell (including, without limitation, any short sale), grant
any option to purchase or otherwise transfer or dispose of (other than to donees
who agree to be similarly bound) any securities of the Company of the class
being offered and sold pursuant to such registration statement held by it at any
time during the Stand-Off Period except common stock included in such
registration.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instruments with respect to the Registrable Securities of the
Investor (and the shares or securities of every other person subject to the
foregoing restriction) until the end of the Stand-Off Period.
Notwithstanding the foregoing, the obligations described in this
Section 4.10 shall not apply to a registration relating solely to employee
benefit plans on Form S-1 or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction on Form S-14 or Form S-15 or similar forms which may be promulgated
in the future or any registration statement filed in connection with the merger
or consolidation of the Company, or the issuance of Company securities in
connection with its acquisition of another business or assets.
4.11 LETTER OR OPINION OF COUNSEL IN LIEU OF REGISTRATION. If in the
opinion of counsel for the Company, the Investor is able to sell all of its
Registrable Securities in a three-month period pursuant to Rule 144 under the
Securities Act, the Company will not be required to register any Registrable
Securities of the Investor, notwithstanding any provision of this Section 4 to
the contrary.
4.12 AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Section 4
may be amended or the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holders of a majority of the Registrable
Securities then outstanding. An amendment or waiver effected in accordance with
this Section shall be binding upon each Holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities are convertible), each future Holder of all such securities, and the
Company.
SECTION 5. GENERAL
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5.1 AMENDMENTS, WAIVERS AND CONSENTS. Any consents required and any
waiver, amendment or other action of the Investor made only by consent(s) in
writing signed by the Investor. Any amendment or waiver made according to this
paragraph will be binding upon each holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities have been converted) and each future holder. Any amendment or waiver
by the Company must be made in writing.
5.2 SURVIVAL; ASSIGNABILITY OF RIGHTS. Except as set forth in Section
4, all representations and agreements of the parties made in this Agreement and
in the certificates, exhibits or other written information delivered or
furnished by one party to the other in connection with this Agreement will
survive for a period of one (1) year.
5.3 GOVERNING LAW. THIS AGREEMENT IS TO BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PROVISIONS THEREOF.
5.4 COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which will be taken to be an original; but such
counterparts will together constitute one document.
5.5 NOTICES AND DEMANDS. Any notice or demand which is permitted or
required hereunder will be deemed to have been sufficiently received (except as
otherwise provided herein) (a) upon receipt when personally delivered, (b) one
(1) day after sent by overnight delivery or telecopy providing confirmation or
receipt of delivery, or (c) three (3) days after being sent by certified or
registered mail, postage and charges prepaid, return receipt requested to the
addresses shown on the signature page of this Agreement, or at any other address
designated by such applicable party in writing.
5.6 SEVERABILITY. If any provision of this Agreement is held invalid
under applicable law, such provision will be ineffective to the extent of such
invalidity, and such invalid provision will be modified to the extent necessary
to make it valid and enforceable. Any such invalidity will not invalidate the
remainder of this Agreement.
5.7 EXPENSES. Each of the Company and the Investor will pay their
respective costs and expenses that they incur with respect to the negotiation,
execution, delivery, amendment and/or performance of this Agreement.
5.8 ENTIRE AGREEMENT. This Agreement (including the exhibits hereto)
and the agreements referenced as exhibits to this Agreement constitute the
entire agreement of the parties with respect to the subject matter thereof, and
supersede any prior agreements.
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The undersigned have executed this Agreement as of the day and year
first written above.
COMPANY:
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Address: 00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
INVESTOR:
HELIX CAPITAL II, LLC
By: /s/ XXXX XXXXX
------------------------------------
Name: Xxxx Xxxxx
Title: Principal
Address: 00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
