1
Exhibit 10.1
STOCK PURCHASE AGREEMENT
By and Between
BOGEN COMMUNICATIONS INTERNATIONAL, INC.
and
GEOTEK COMMUNICATIONS, INC.
NOVEMBER 26, 1997
2
TABLE OF CONTENTS
Page
1. DEFINITIONS.............................................................. 1
2. THE PURCHASE............................................................. 2
2.1 Purchase.................................................... 2
2.2 Purchase Consideration...................................... 3
3. THE CLOSING.............................................................. 3
4. REPRESENTATIONS AND WARRANTIES OF GEOTEK................................. 4
4.1 Status and Authority........................................ 4
4.2 Conflicts, Consents and Approvals........................... 4
4.3 Title to Shares and Warrants................................ 5
4.4 Litigation.................................................. 5
4.5 Brokers..................................................... 6
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................ 6
5.1 Status and Authority........................................ 6
5.2 Conflicts, Consents and Approvals........................... 6
5.3 Securities Filings.......................................... 7
5.4 Absence of Certain Changes.................................. 7
5.5 Litigation.................................................. 8
5.6 Brokers..................................................... 8
6. ADDITIONAL AGREEMENTS.................................................... 8
6.1 Resignation of Directors and Officers....................... 8
6.2 Expenses of Transaction; Transfer Taxes..................... 8
6.3 Continuation of Medical and Financial Coverage.............. 9
6.4 Preserve Accuracy of Representations and Warranties......... 10
6.5 Cooperation................................................. 10
7. NON-COMPETITION BY GEOTEK................................................ 10
7.1 Covenants Against Competition............................... 10
7.2 Rights and Remedies Upon Breach............................. 14
7.3 Severability of Covenants................................... 14
7.4 "Blue-Pencilling"........................................... 15
7.5 Enforceability in Jurisdictions............................. 15
8. SURVIVAL................................................................. 15
9. CONDITIONS PRECEDENT..................................................... 16
-i-
3
9.1 Conditions to Obligation of Geotek.......................... 16
9.2 Conditions to Obligations of the Company.................... 17
10. TERMINATION.............................................................. 18
11. MISCELLANEOUS............................................................ 19
11.1 Notices..................................................... 19
11.2 Publicity................................................... 20
11.3 Further Assurances.......................................... 20
11.4 Severability................................................ 20
11.5 Entire Agreement............................................ 20
11.6 Amendments.................................................. 20
11.7 Waiver...................................................... 21
11.8 Captions.................................................... 21
11.9 No Third Party Beneficiary.................................. 21
11.10 Remedies Cumulative......................................... 21
11.11 Governing Law............................................... 22
11.12 Assignment.................................................. 22
11.13 Counterparts................................................ 22
-ii-
4
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") is dated as of the
____ day of November, 1997 by and among BOGEN COMMUNICATIONS INTERNATIONAL,
INC., a Delaware corporation (the "Company"), and GEOTEK COMMUNICATIONS, INC., a
Delaware corporation ("Geotek").
W I T N E S S E T H
WHEREAS, Geotek is the beneficial owner of 3,701,919 shares (the
"Shares") of the Common Stock, par value $.001 per share, of the Company (the
"Common Stock"), and warrants (the "Warrants") to purchase 200,000 shares of
Common Stock, which Shares and Warrants constitute all shares of capital stock
of the Company, and rights to acquire capital stock of the Company, held
beneficially or of record by Geotek; and
WHEREAS, Geotek wishes to sell such Shares and Warrants to the Company
and the Company wishes to purchase and acquire such Shares and Warrants from
Geotek.
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants, agreements, representations and warranties hereinafter set forth and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. DEFINITIONS
As used herein, the following terms shall have the meaning
indicated:
5
"Governmental Authority" shall mean any foreign, federal, state or
local court, arbitration tribunal, legislative body, administrative agency or
commission, or other governmental or other regulatory authority, agency or
department.
"Material," whether capitalized or not, when used to qualify a
representation, warranty, or covenant contained in this Agreement shall mean,
unless otherwise defined, as the case may be and to the extent the context so
requires, that there is a reasonable probability under all the circumstances and
in view of the total mix of information available that a reasonable Person, in
the position of the party relying thereon, would attach importance to the matter
in question in deciding whether to enter into and consummate this Agreement in
accordance with the specific terms contained in this Agreement.
"Person" shall mean any natural person, corporation, organization,
partnership, association, joint-stock company, limited liability company, joint
venture, trust or government, or any agency or political subdivision of any
government.
2. THE PURCHASE
2.1 Purchase. Subject to the terms and conditions contained herein, on
the Closing Date (as defined in Section 3 hereof), Geotek shall sell, transfer,
assign, and convey the Shares and the Warrants to the Company, and shall deliver
to the Company a stock certificate or certificates representing all of the
Shares, duly endorsed in blank with duly executed stock powers attached, and the
certificates representing all of the Warrants, all in proper form for transfer
free and clear of any lien, encumbrance, security interest, pledge, charge,
option, claim, mortgage or any other encumbrance whatsoever (collectively, a
-2-
6
"Lien") with respect thereto. The Company shall purchase, acquire and accept
each of Geotek's Shares and Warrants in exchange for the Purchase Consideration
set forth in Section 2.2.
2.2 Purchase Consideration. At the Closing (as defined in Section 3
hereof), in exchange for the Shares and the Warrants and against delivery of a
stock certificate or certificates representing the Shares and a certificate or
certificates representing the Warrants, the Company shall cause to be paid, by
receipt of funds by Geotek via wire transfer to an account designated by Geotek
in the aggregate amount of $18,500,000 (the "Purchase Consideration").
3. THE CLOSING
The closing of the transactions described herein (the
"Closing") shall take place at 10:00 a.m. on November 26, 1997 (the "Closing
Date") at the offices of XxXxxxxxx, Will & Xxxxx, 00 Xxxxxxxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or at such other time and place as shall be agreed to by
the parties. The Closing shall be effective as of the close of business on the
Closing Date. At the Closing, the parties shall deliver, or cause to be
delivered, such certificates, receipts or other documents or instruments as are
provided for in this Agreement and shall attend to such other matters as may be
reasonably required and are customary to comply with the terms of this
Agreement.
-3-
7
4. REPRESENTATIONS AND WARRANTIES OF GEOTEK
Geotek represents and warrants to the Company as follows:
4.1 Status and Authority. Geotek is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware.
Geotek has the full and unrestricted right, power and authority (a) to own each
of the Shares and the Warrants, (b) to execute and deliver this Agreement and
every other agreement, document or instrument contemplated hereby or in
connection with the transactions referred to herein (collectively, the "Related
Agreements") to which it is party, (c) to perform its obligations hereunder and
thereunder and (d) to consummate the transactions contemplated hereby and
thereby. The execution, delivery and performance of this Agreement and the
Related Agreements by Geotek and the consummation of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
action on the part of Geotek. This Agreement and the Related Agreements have
been duly executed and delivered by Geotek and constitute the valid and binding
obligation of Geotek, enforceable against Geotek in accordance with their terms.
4.2 Conflicts, Consents and Approvals. The execution, delivery and
performance of this Agreement and the Related Agreements by Geotek do not and
will not result in (a) any conflict with any formative, organizational or
governing documents of Geotek, (b) any Material breach or violation of or
default under any law, rule, statute, regulation, judgment, order or decree or
any Material note, bond, mortgage, agreement, deed of trust, indenture, license,
permit, lease, loan agreement, contract, agreement or any other instrument or
arrangement to which Geotek is a party or by which Geotek or any of its
-4-
8
properties or assets is bound or (c) the creation or imposition of any Liens on
any of the Shares or Warrants. No consent, approval or authorization of or
filing, registration, qualification, designation or declaration with, or notice
to, any Governmental Authority or any third party is required on the part of
Geotek in connection with the execution and delivery of this Agreement and the
Related Agreements or the consummation of the transactions contemplated hereby
and thereby, other than those consents and approvals which have been obtained.
4.3 Title to Shares and Warrants. Geotek owns all of the Shares and the
Warrants free and clear of all Liens, except to the extent that such Liens will
be removed prior to the Closing. The Shares and the Warrants constitute all of
the securities of the Company held by Geotek and its affiliates and Geotek has
no direct or indirect ownership interest in the Company except as beneficial
owner of the Shares and the Warrants. Except for this Agreement and the Voting
Agreement dated August 21, 1995, by and among Geotek, Xxxx Xxxxx, Xxxxx X.
Xxxxxxxxx and Xxxxx Xxx Xxxxxxxx, Geotek is not a party to any agreement
restricting the transfer or the voting of the Shares or the Warrants.
4.4 Litigation. There is no lawsuit, arbitration, action, claim,
investigation, hearing, charge, complaint, demand or administrative proceeding
either (a) pending in any court or before any Governmental Authority or
otherwise pending against Geotek or (b) to the knowledge of Geotek's officers or
directors, threatened, against Geotek, seeking to restrain, prohibit or
invalidate the sale of the Shares and/or the Warrants hereunder by Geotek to the
Company or the consummation of the transactions contemplated hereby or
-5-
9
seeking damages in connection with such transactions or to place a lien on, or
otherwise encumber, the Shares and/or the Warrants.
4.5 Brokers. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out without the intervention
of any Person acting on behalf of Geotek in such manner as to give rise to any
claim for any brokerage or finder's commission, fee or similar compensation
which would require payment by the Company.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Geotek as follows:
5.1 Status and Authority. The Company is duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. The
Company has the full and unrestricted right, power and authority to (a) execute
and deliver this Agreement and the Related Agreements to which it is party, (b)
to perform its obligations hereunder and thereunder and (c) to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance of this Agreement and the Related Agreements by the Company and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary actions on the part of the Company. This Agreement
and the Related Agreements have been duly executed and delivered by the Company
and constitutes the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
5.2 Conflicts, Consents and Approvals. The execution, delivery and
performance of this Agreement and the Related Agreements by the Company do not
and will
-6-
10
not result in (a) any conflict with any formative, organizational or governing
documents of the Company or (b) any Material breach or violation of or default
under any law, rule, statute, regulation, judgment, order or decree or any note,
bond, mortgage, agreement, deed of trust, indenture, license, permit, lease,
loan agreement, contract, agreement or any other instrument or arrangement to
which the Company is a party or by which the Company or any of its properties or
assets is bound. No consent, approval or authorization of or filing,
registration, qualification, designation or declaration with, or notice to, any
Governmental Authority or any third party is required on the part of the Company
in connection with the execution and delivery of this Agreement and the Related
Agreements or the consummation of the transactions contemplated hereby and
thereby, other than those consents and approvals which have been obtained.
5.3 Securities Filings. The Company has heretofore delivered to Geotek,
the Company's annual report on Form 10-K for its fiscal year ended December 31,
1996 and the Company's quarterly report on Form 10-Q for the fiscal quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997 (collectively, the
"SEC Reports"). As of their respective filing dates, the SEC Reports filed
pursuant to the Securities Exchange Act of 1934 did not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in light of the circumstances in
which they were made, not misleading.
5.4 Absence of Certain Changes. Except as disclosed in the SEC Reports,
at all times since September 30, 1997, the Company has conducted its business in
the ordinary course consistent with past practice and there has not been any
change, or any event,
-7-
11
occurrence or development of a state of circumstances of facts, which could
reasonably be expected to have a Material adverse effect on the Company.
5.5 Litigation. There is no lawsuit, arbitration, action, claim,
investigation, hearing, charge, complaint, demand or administrative proceeding
either (a) pending in any court or before any Governmental Authority or
otherwise pending against the Company or (b) to the knowledge of the Company's
officers or directors, threatened, against the Company, seeking to restrain,
prohibit or invalidate the purchase of the Shares and/or the Warrants hereunder
by the Company from Geotek or the consummation of the transactions contemplated
hereby or seeking damages in connection with such transactions.
5.6 Brokers. All negotiations relating to this Agreement and the
transactions contemplated hereby have been carried out without the intervention
of any Person acting on behalf of the Company in such manner as to give rise to
any claim for any brokerage or finder's commission, fee or similar compensation
which would require payment by Geotek.
6. ADDITIONAL AGREEMENTS
6.1 Resignation of Directors and Officers. On the Closing Date, Geotek
shall cause each Person nominated to the Board of Directors of the Company by
it, including, without limitation, Xxxxx Xxxxx, Xxxx X. Xxxxxx, Xxx Xxxxx and
Xxxxxx Xxxxxxx, to resign from all directorships and other positions such Person
holds with the Company.
6.2 Expenses of Transaction; Transfer Taxes. Geotek shall have no
liability or other responsibility to the Company, and the Company shall have no
liability or other responsibility to Geotek, for any costs or expenses relating
to this Agreement, the Related
-8-
12
Agreements or the transactions contemplated hereby or thereby. Geotek shall pay
all stock transfer taxes, recording fees and other sales, transfer, use,
purchase or similar tax resulting from the transactions contemplated hereby.
6.3 Continuation of Medical and Financial Coverage. Geotek agrees to
(a) continue all medical benefits, other employee benefits and insurance
coverage, excluding directors' and officers' insurance, currently available to
the Company and its subsidiaries and its employees provided that the Company
reimburses Geotek for such benefits and coverage within 30 days of Geotek's
payment therefor to the carrier, upon presentation by Geotek to the Company of
expense statements, proof of payment and such other supporting information as
the Company may reasonably require, or in the case of group health, medical and
dental plans, the Company pays the carrier or provider directly, until the
earlier of (i) the date on which the Company notifies Geotek of its desire to
terminate any such coverage, or (ii) with respect to group health, medical and
dental plans, December 1, 1997, but only in the event that the Company is able
to enter into an agreement, effective December 1, 1997, with the providers of
Geotek's current group health, medical and dental plans on the same terms as are
currently available to the Company through Geotek and at no additional cost to
the Company, otherwise February 28, 1998, and, with respect to all other
insurance plans, January 1, 1998, and (b) cooperate with the Company and its
employees in connection with pursuing claims under all such insurance plans.
Geotek also agrees to continue to allow participation of the Company's and its
subsidiaries' employees under Geotek's 401(k) plan until April 30, 1998, or
sooner if the Company so elects. Geotek further agrees, at the direction of the
Company, to direct Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Incorporated to
-9-
13
cooperate with the plan splitoff pursuant to which funds in Geotek's 401(k) plan
relating to the employees of the Company and any of its subsidiaries will be
transferred to a 401(k) plan of the Company. Nothing contained herein shall
obligate Geotek to match any contribution made after the date hereof to Geotek's
401(k) plan by any of the employees of the Company or any of its subsidiaries.
6.4 Preserve Accuracy of Representations and Warranties. Each of the
parties hereto shall refrain from taking any action that would render any of its
representations or warranties contained in this Agreement inaccurate through the
Closing Date. Each shall promptly notify the others if any action, suit or
proceeding shall be instituted or threatened against any such party to restrain,
prohibit or otherwise challenge the legality of any transaction contemplated by
this Agreement.
6.5 Cooperation. During the period prior to the Closing Date, Geotek
and the Company shall act diligently and reasonably, and shall cooperate with
each other in order to permit the consummation of the transactions contemplated
by this Agreement.
7. NON-COMPETITION BY GEOTEK
7.1 Covenants Against Competition. Geotek acknowledges that (i) the
principal business of the Company and its subsidiaries is the development,
assembly and distribution of (a) sound processing equipment used for public
broadcast systems and speakers for outdoor use and home theater systems, (b)
office-based telecommunications PBX peripherals that provide voice mail, auto
attendant functions, music and message on hold, telephone accounting systems and
speech recognition for telephone systems and paging systems and (c)
-10-
14
any combination of the businesses described in clauses (a) and (b)
(collectively, the "Company Business"); (ii) the Company Business is
international in scope; (iii) Geotek was provided with information concerning
many confidential affairs of the Company not readily available to the public;
(iv) the agreements and covenants contained in this Article 7 are essential to
protect the business and goodwill of the Company; (v) the Company would not
enter into this Agreement and would not purchase the Shares and the Warrants but
for such covenants and agreements. In order to induce the Company to enter into
this Agreement, Geotek covenants and agrees that:
(a) Non-Compete. For a period of three years following the
Closing Date (the "Restricted Period"), Geotek shall not, in the United States
of America or in any foreign country, directly or indirectly, (i) engage in the
Company Business for its own account; or (ii) become interested in any Person
engaged in the Company Business, directly or indirectly, as a partner,
shareholder, principal, agent, trustee, consultant or in any other relationship
or capacity; provided, however, that Geotek may own, directly or indirectly,
solely as an investment, securities of any Person which are traded on any
national securities exchange or the NASDAQ National Market System if Geotek (a)
is not a controlling Person of, or a member of a group which controls, such
Person or (b) does not, directly or indirectly, own 1% or more of any class of
securities of such Person; provided, however, that nothing contained herein
shall be interpreted to preclude Geotek from continuing its current business
plan to provide integrated voice and data communications equipment and services
or to preclude Geotek from integrating its voice and data communication
equipment and services with any existing or future telecommunications equipment
or services; provided further, that
-11-
15
Geotek shall not use the Company's integrated voice and paging system known as
"NextPage" without the prior written consent of the Company in each instance or
without first purchasing or licensing "NextPage".
(b) Confidential Information. Geotek promises and agrees on
behalf of itself, its employees and directors that, either during the Restricted
Period or at any time thereafter, it shall keep secret and retain in strictest
confidence, and shall not use for the its own benefit or for the benefit of
others, any confidential information of the Company and its affiliates,
including, without limitation, trade "know-how," secrets, customer lists,
details of consultant contracts, pricing policies, operational methods,
marketing plans or strategies, product development techniques or plans, business
acquisition plans, new personnel acquisition plans, methods of manufacture,
technical processes, designs and design projects, inventions and research
projects and other business affairs of the Company and its affiliates
(collectively, "Confidential Information"), obtained by Geotek heretofore and
through the Closing Date; except for Confidential Information (i) which is in
the public domain, excluding Confidential Information which is in the public
domain as a result of any action taken by Geotek in violation of this Section
7.1(b); (ii) which the Company publicly discloses; or (iii) which Geotek
receives from a third party who is not violating a confidentiality obligation to
the Company.
(c) Property of the Company. All documents and other
materials, including, without limitation, original minute books of the Company
and its subsidiaries, original books and records of the Company, manually signed
agreements to which the Company is a party (other than those agreements to which
Geotek is also a party and with
-12-
16
respect to which the Company has a manually signed agreement in its possession),
the Company's tax returns since 1991, memoranda, notes, lists, records and other
documents or papers (and all copies thereof), including such items stored in
computer memories, on microfiche or by any other means, made or compiled by or
on behalf of Geotek, or made available to Geotek relating to the Company, are
and shall be the Company's property and shall be delivered, to the extent
available, to the Company promptly after the Closing or at any other time on
request, only to the extent such materials can be delivered without undue effort
or expense; provided, however, that the tax returns, accounting records, and
manually signed agreements to which the Company or any of its subsidiaries is a
party and Geotek is not a party shall be returned to the Company promptly after
the Closing without regard to the effort or expense required to return such
materials to the extent available and in the possession of Geotek or any of its
subsidiaries. Geotek further agrees (i) to cooperate and provide access to its
books and records in connection with any audit of the Company and/or its
subsidiaries; and (ii) to direct Xxxxx Deal, Esq., to transfer to an attorney
designated by the Company all records and files relating to any matters serviced
for the benefit of the Company.
(d) Employees of the Company. During the Restricted Period,
Geotek shall not, directly or indirectly hire, solicit or encourage to leave the
employment of the Company or any of its affiliates, any employee of the Company
or its affiliates or hire any such employee who has left the employment of the
Company or any of its affiliates within one year of the termination of such
employee's employment with the Company or any of its affiliates. Notwithstanding
anything to the contrary contained herein, Geotek may solicit and
-13-
17
hire Xxxx Xxxxxx and Xxxxx Xxxxxxxx any time after the three-week anniversary
following the Closing.
(e) Consultants and Independent Contractors of the Company.
Except as agreed to in writing by the Company and Geotek, during the Restricted
Period, Geotek shall not, directly or indirectly, hire, solicit or encourage to
cease to work with the Company or any of its affiliates, any consultant, sales
representative and other person then under contract with the Company or any of
its affiliates; provided, however that Geotek may hire or solicit consultants
who in the ordinary course of such consultant's business provides services to
more than three clients at any one time.
7.2 Rights and Remedies Upon Breach. If Geotek breaches, or threatens
to commit a breach of, any of the provisions of Section 7.1 (the "Restrictive
Covenants"), the Company shall have the following rights and remedies, each of
which rights and remedies shall be independent of the other and severally
enforceable, and all of which rights and remedies shall be in addition to, and
not in lieu of, any other rights and remedies available to the Company under law
or in equity, the right and remedy to have the Restrictive Covenants
specifically enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach will cause
irreparable injury to the Company and its affiliates and that money damages will
not provide an adequate remedy to the Company.
7.3 Severability of Covenants. Geotek acknowledges and agrees that the
Restrictive Covenants are reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any parts
-14-
18
thereof, is invalid or unenforceable, the remainder of the Restrictive Covenants
shall not thereby be affected and shall be given full effect, without regard to
the invalid portions.
7.4 "Blue-Pencilling". If any court construes any of the Restrictive
Covenants, or any part thereof, to be unenforceable because of the duration of
such provision or the area covered thereby, such court shall have the power to
reduce the duration or area of such provision and, in its reduced form, such
provision shall then be enforceable and shall be enforced.
7.5 Enforceability in Jurisdictions. The parties intend to and hereby
confer jurisdiction to enforce the Restrictive Covenants upon the courts of any
jurisdiction where the geographical scope of any alleged violations of the
Restrictive Covenants has been implicated. If the courts of any one or more of
such jurisdictions hold the Restrictive Covenants wholly unenforceable by reason
of the breadth of such scope or otherwise, it is the intention of the parties
that such determination not bar or in any way affect the Company's right to the
relief provided above in the courts of any other jurisdiction within the
geographical scope of such Restrictive Covenants, as to breaches of such
Restrictive Covenants in such other respective jurisdictions, such Restrictive
Covenants as they relate to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.
8. SURVIVAL
The warranties and representations of Geotek set forth in Article 4 of
this Agreement and the warranties and representations of the Company set forth
in Article 5 of this Agreement shall survive the Closing and the consummation of
the transactions contemplated by this Agreement for a period of one year from
the date hereof.
-15-
19
9. CONDITIONS PRECEDENT
9.1 Conditions to Obligation of Geotek. The obligation of Geotek to
effect the transactions contemplated hereby shall be subject to the satisfaction
at or prior to the Closing of the following conditions:
(a) The Company shall have performed in all Material respects
its obligations under this Agreement required to be performed by it at or prior
to the Closing;
(b) The representations and warranties of the Company
contained herein shall be true and correct in all Material respects at and as of
the Closing as if made at and as of such date;
(c) The Company shall have delivered to Geotek a certificate,
dated the Closing Date, signed by a duly authorized executive officer of the
Company, to the effect that, to the best knowledge, information and belief of
such officer, the conditions specified in Sections 9.1(a) and 9.1(b) have been
fulfilled;
(d) The Company shall have delivered to Geotek a release in
the form attached hereto as Exhibit A;
(e) The Company shall have delivered to Geotek a certificate
of the Secretary of the Company as to the resolutions of the Board of Directors,
incumbency of officers, execution of documents, Certificate of Incorporation and
By-laws of the Company;
(f) All required consents shall have been obtained and be in
full force and effect and Geotek shall have been furnished with appropriate
evidence of the granting of such approvals, authorizations and consents; and
-16-
20
(g) Geotek shall have received an opinion of XxXxxxxxx, Will &
Xxxxx, counsel for the Company, substantially in the form attached hereto as
Exhibit B.
9.2 Conditions to Obligations of the Company. The obligations of the
Company to effect the transactions contemplated hereby shall be subject to the
satisfaction at or prior to the Closing of the following conditions (in addition
to those specified in Section 9.1 hereof):
(a) Geotek shall have performed in all Material respects its
obligations required under this Agreement to be performed at or prior to the
Closing;
(b) The representations and warranties of Geotek contained
herein shall be true and correct in all Material respects at and as of the
Closing as if made at and as of such time;
(c) Geotek shall have delivered to the Company a certificate,
dated the Closing Date, signed by a duly authorized executive officer of Geotek,
to the effect that to the best knowledge, information and belief of such
officer, the conditions specified in Sections 9.2(a) and 9.2(b) have been
fulfilled;
(d) Geotek shall have delivered to the Company a certificate
of the Secretary of Geotek as to the resolutions of the Board of Directors,
incumbency of officers, execution of documents, Certificate of Incorporation and
By-laws of Geotek;
(e) The Company shall have received the resignations referred
to in Section 6.1 hereof;
-17-
21
(f) Geotek shall have delivered to the Company a release in
the form attached hereto as Exhibit C;
(g) All required consents, shall have been obtained and be in
full force and effect and the Company shall have been furnished with appropriate
evidence of the granting of such approvals, authorizations and consents; and
(h) The Company shall have received an opinion of Klehr,
Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx, counsel for Geotek, substantially in the
form attached hereto as Exhibit D.
10. TERMINATION
This Agreement may be terminated and the Purchase contemplated hereby
may be abandoned at any time prior to the Closing by Geotek or the Company:
(a) if the Closing shall not have occurred on or before
December 1, 1997; provided, however, that the right to terminate this Agreement
under this Section 10.1(a) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or resulted
in, the failure of the Closing to occur on or before such date; or
(b) if any Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, injunction or
other order which is in effect and is permanent and nonappealable and has the
effect of making the Purchase illegal or otherwise prohibiting consummation of
the Purchase. In the event of the termination and abandonment of this Agreement
pursuant to this clause (b), this Agreement shall forthwith
-18-
22
become void and have no effect, without any liability on the part of any party
or its directors or officers.
11. MISCELLANEOUS
11.1 Notices. Any notice, request, instruction, or other communication
to be given hereunder by any party to another shall be in writing and shall be
deemed to have been duly given if delivered by hand or sent by telecopier
(transmission confirmed), certified or registered mail (return receipt
requested), postage prepaid, or by overnight express service, addressed to the
respective party or parties at the following addresses:
If to Geotek: Geotek Communications, Inc.
000 Xxxxxxxx Xxxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attn: Mr. Xxxxx Xxxxx
Telecopier: (000) 000-0000
With a copy to: Klehr, Harrison, Xxxxxx, Xxxxxxxxx & Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopier: (000) 000-0000
If to the Company: Bogen Communications International, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xx. Xxxx X. Xxxxx
Telecopier: (000) 000-0000
With a copy to: XxXxxxxxx, Will & Xxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
-19-
23
or to such other address or addresses as any party may designate to the others
by like notice as set forth above. Any notice given hereunder shall be deemed
given and received on the date of hand delivery or transmission by telecopier,
or five (5) days after mailing by certified or registered mail or one (1) day
after delivery to an overnight express service for next day delivery, as the
case may be.
11.2 Publicity. Except as may otherwise be required by law, no
publicity release or announcement concerning this Agreement or the transactions
contemplated hereby shall be made without advance approval thereof by Geotek and
the Company.
11.3 Further Assurances. At any time and from time to time after the
Closing, at the request of any party and without further consideration, the
other parties hereto shall execute and deliver such other instruments of sale,
transfer, assignment, assumption and confirmation, and take such other action,
as may be reasonably necessary in order to carry out and implement more
effectively the provisions and purposes of this Agreement.
11.4 Severability. If any term, provision, covenant or restriction of
this Agreement, or any part thereof, is held by a court of competent
jurisdiction or any Governmental Authority to be invalid, void, unenforceable or
against public policy for any reason, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
11.5 Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the transactions contemplated hereby.
11.6 Amendments. This Agreement may be amended by Geotek or the Company
at any time by execution of a written instrument signed on behalf of all
parties.
-20-
24
11.7 Waiver. At any time prior to the Closing, the parties may waive
any inaccuracies in the representations and warranties contained herein or in
any document, certificate or writing delivered pursuant hereto or waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof. Nor shall any waiver on
the part of any such right, power and privilege, nor any single or partial
exercise of any such right, power or privilege, preclude any further exercise
thereof or the exercise of any other such right, power or privilege.
11.8 Captions. The captions of the various Articles, Sections and
Exhibits of this Agreement have been inserted only for convenience of reference
and shall not be deemed to modify, explain, enlarge or restrict any provision of
this Agreement or affect the construction hereof.
11.9 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person
other than the parties hereto and their respective heirs, personal
representatives, legal representatives, and successors, any rights or remedies
under or by reason of this Agreement.
11.10 Remedies Cumulative. No remedy made available by any of the
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity.
-21-
25
11.11 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware,
without regard to conflict of laws of the State of Delaware.
11.12 Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties. Subject to the preceding sentence, this Agreement
will be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and assigns.
11.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered one and the same agreement and
shall become effective when a counterpart has been signed and delivered by each
of the parties, it being understood that all parties need not sign the same
counterpart.
-22-
26
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on this 26th day of November, 1997.
GEOTEK COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Name:
----------------------------
Title:
----------------------------
BOGEN COMMUNICATIONS
INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxx
----------------------------
Name:
----------------------------
Title:
----------------------------
-23-
