Exhibit 10.3
SUBSCRIPTION AGREEMENT dated as of March 2, 2004 (this "Agreement")
between (i) TELEX COMMUNICATIONS HOLDINGS, INC., a Delaware corporation (the
"Company"), and (ii) XXXXXXX XXXXXXX VON HEYDEKAMPF ("Employee").
Capitalized terms used but not otherwise defined herein shall have the
meanings set forth in Section 1 hereof.
Witnesseth:
Whereas, the Company has agreed to sell to Employee sixty thousand
(60,000) shares of Common Stock, subject to the terms and conditions of this
Agreement.
Now, therefore, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member of
the family (including parents, spouse, children and grandchildren) of such
individual and any trust whose principal beneficiary is such individual or one
or more members of such family and any Person who is controlled by any such
member or trust. As used in this definition, "control" (including, with its
correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of power to direct or cause the
direction of management or policies of a Person (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise); and any Person which owns directly or indirectly 10% or more of the
securities having ordinary voting power for the election of directors or other
governing body of a corporation or 10% or more of a partnership or other
ownership interest of any other Person will be deemed to control such
corporation or other Person. Without limiting the generality of the foregoing,
"Affiliate" shall also include the following: (i) any direct or indirect
Subsidiary of such Person or of any other Affiliate of such Person; and (ii) any
partnership of which such Person or any of the foregoing or any other Affiliate
is a general partner, or is the holder of any interest in such partnership
entitling the holder thereof to 10% or more of the profits and losses of the
partnership or which represents 10% or more of the contributed capital or the
capital contribution requirements of the partnership. The Company and its
Subsidiaries shall not be deemed to be "Affiliates" of Employee for purposes of
this Agreement.
"Change of Control" shall have the meaning given such term, or any similar
term, under the Credit Documents. Documents.
2
"Common Stock" shall mean the Common Stock, par value $0.01 per
share, of the Company.
"Common Stock Deemed Outstanding" shall mean the number of shares of
Common Stock determined on a fully diluted basis giving effect to all
outstanding Common Stock Equivalents.
"Common Stock Equivalents" shall mean the Common Stock and all
securities convertible into or exchangeable for Common Stock or any options,
warrants, convertible securities or other rights to acquire Common Stock or such
convertible or exchangeable securities.
"Company" shall have the meaning given such term at the beginning of
this Agreement.
"Credit Documents" shall mean and include: (i) the Credit Agreement
dated as of November 19, 2003, by and among Telex, the other persons designated
as "Credit Parties" on the signature pages thereof, the Lenders who become party
to such agreement, and General Electric Capital Corporation, as the initial L/C
Issuer and as Agent; (ii) the Indenture dated as of November 19, 2003 among
Telex, the Guarantors named therein, and BNY Midwest Trust Company, as Trustee
and Collateral Agent, governing Telex's 11 1/2% Senior Secured Notes due 2008,
(iii) the Indenture dated as of November 19, 2003 by and between Intermediate
Holdings, as Issuer, and BNY Midwest Trust Company, as Trustee and Collateral
Agent governing Intermediate Holdings' 13% Senior Subordinated Discount Notes
due 2009; and (iv) any refunding, restructuring, replacement, substitution,
renewal, modification, increase or extension of any of the foregoing.
"Employee" shall have the meaning given such term at the beginning
of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Government" shall mean (or in the case of "Governmental" shall
refer to): (i) the governments of the United States and any country wherein the
Company engages in business; (ii) the government of any state, province, county,
municipality, city, town or district of any such country; and (iii) any
ministry, agency, department, authority, commission, administration,
corporation, bank, court, magistrate, tribunal, arbitrator, instrumentality or
political subdivision of, or within the geographical jurisdiction of, any
government described in the foregoing clauses (i) and (ii).
"Shares" shall have the meaning given such term in Section 2 hereof.
"Insolvency Event", when used with respect to any Person, shall mean
and include any of the following affecting such Person or the assets of such
Person or his estate: bankruptcy; reorganization; insolvency proceeding;
receivership; appointment of a trust or
2
conservatorship; foreclosure on or seizure of a material portion of the assets
of such Person or his estate; enforcement of any lien, mortgage, collateral
assignment or similar agreement or security interest on a material portion of
the assets of such Person or his estate; or any similar proceeding or action
affecting such Person or his estate or a material portion of the assets of such
Person or his estate.
"Intermediate Holdings" shall mean Telex Communications Intermediate
Holdings, LLC, a Delaware limited liability company.
"Interested Party" when used with respect to any Sale of the Company
shall mean and include: (i) any Person or "group" (as such term is used in Rule
13d-5(b) under the Exchange Act), which is the "beneficial owner" (as such term
is used in Rule 13d-3 under the Exchange Act) of more than 10% of the shares of
the Common Stock Deemed Outstanding as of immediately prior to any Sale of the
Company Effective Date; (ii) any Affiliate, director, officer or equity security
holder of any Person or group described in the preceding clause (i); and (iii)
any director or officer the Company or any Subsidiary of the Company, and any
Affiliate of any such director or officer of the Company or any Subsidiary of
the Company.
"Law" shall mean any of the following of, or issued by, any
Government, including without limitation any amendment, modification or
supplementation of any of the following from time to time subsequent to the
original enactment, adoption, issuance, announcement, promulgation or granting
thereof and prior to the date hereof: any statute, law, act, ordinance, code,
rule or regulation or any writ, injunction, award, decree, judgment or order of
any Government.
"Liens" shall mean liens, attachments, encumbrances, restrictions,
licenses, claims, security interests, mortgages, pledges, charges, usufruct,
easement, note of litis, lis pendens, escrows, precautionary measures (whether
taken prior to or after the initiation of the lawsuit), privilege, right of
option or preference, options, rights of first refusal or offer, or other right
of a real or personal kind having similar effect or other limitation to full
ownership, transfer and/or availability of the assets subject to the Lien in
question.
"Majority Holders" shall mean the holders of record of more than 50%
of the Common Stock outstanding.
"Mandatory Sale Triggering Event" shall have the meaning given such
term in Section 8(a) hereof.
"Mandatory Sale Election" and "Mandatory Sale Election Period" shall
have the meaning given such term in Section 7(b) hereof.
"Mandatory Sale of Shares" shall have the meaning given such term in
Section 7(c) hereof.
"Mandatory Sale Option" shall have the meaning given such term in
Section 7(a) hereof.
3
"Mandatory Sale Purchase Price" shall have the meaning given such
term in Section 7(a) hereof.
"Mandatory Sale Shares" shall have the meaning given such term in
Section 7(a) hereof.
"Permitted Transfers" shall have the meaning given such term in
Section 5(b) hereof.
"Person" shall mean an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization or a Government.
"Public Offering" shall mean the closing of a sale by the Company to
the public of Common Stock for the account of the Company pursuant to an
effective registration statement under the Securities Act.
"Purchase Price" shall have the meaning given such term in Section 2
hereof.
"Qualified Public Offering" shall mean the closing of an
underwritten Public Offering having an aggregate value (based upon the offering
price of such Public Offering) of at least $40 million.
"Related Persons" when used with respect to any other Person shall
mean and include: members of the family of such Person (including without
limitation natural and adopted children, parents, grand-parents, siblings and
children of siblings); the estate of such Person upon such Person's death;
descendents of such Person; and trusts or similar entities created for the
benefit of such Person or any Related Person.
"Restricted Securities" shall mean and include the Shares.
"Sale of the Company" shall have the meaning given such term in
Section 6(a) hereof.
"Sale of the Company Effective Date" shall mean the date on which
any Sale of the Company shall have been effected.
"Securities Act" shall mean the Securities Act of 1933, as amended
and in effect from time to time, together with the rules and regulations
promulgated thereunder from time to time by the United States Securities and
Exchange Commission.
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership, association or other business entity of which: (i) if
a corporation, a majority of the total voting power of shares of stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly
4
or indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof; or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a partnership, association or other business entity if
such Person or Persons shall be allocated a majority of partnership, association
or other business entity gains or losses or shall be or control the managing
director, managing member or a general partner or other managing person of such
partnership, association or other business entity.
"Telex" shall mean Telex Communications, Inc., a Delaware
corporation.
"Transfer" or "Transferred" in connection with any Restricted
Securities shall mean a sale, assignment, gift, pledge, mortgage, hypothecation
or other transfer of, the imposition of any Lien on or the grant of any interest
therein, whether occurring voluntarily or involuntarily, directly or indirectly,
or by operation of law or otherwise.
"Transferee" shall mean Persons to whom Restricted Securities are
Transferred.
2. Issuance of Shares. Simultaneously with the execution and delivery
of this Agreement, the Company shall issue to Employee, and Employee shall
purchase, sixty thousand (60,000) shares of the Common Stock (the "Shares") at a
price of $0.30 per Share (the "Purchase Price"), or eighteen thousand dollars
($18,000) in the aggregate, in cash. The Company shall cause certificates
evidencing the Shares to be issued to Employee as soon as practicable following
payment in full of the Purchase Price.
3. Restricted Securities; Legend.
(a) Employee acknowledges and confirms as follows: The Restricted
Securities are or will be issued in reliance upon and in accordance with the
exemption from registration afforded by Section 4(2) the Securities Act and
Regulation D thereunder. Employee is acquiring the Restricted Securities for
investment for Employee's own account and not with a view to any public sale or
other distribution thereof. Employee is a sophisticated purchaser and capable of
evaluating the merits and risks of acquiring the Restricted Securities.
Employee, by reason of Employee's management, business or financial experience,
has the capacity to protect Employee's own interests in connection with the
purchase of the Restricted Securities. Employee acknowledges and agrees as
follows: (i) the Restricted Securities are "restricted securities" (as defined
under the rules and regulations promulgated under the Securities Act) and as
such may not be sold or transferred unless registered under the Securities Act,
unless an exemption from registration thereunder is available in connection with
any such sale or transfer or unless such registration requirements are not
otherwise applicable to any such sale or transfer; (ii) the Restricted
Securities have not been issued pursuant to any registration or similar filing,
listing or prospectus or document delivery requirements under the laws, rules or
regulations of any Government or the rules, regulations or guidelines of any
stock exchange or quotation system, and the Company has no obligation to effect
any of the foregoing with respect to the Restricted Securities; and (iii)
Employee has received, or has had access to, all information which Employee
considers necessary or advisable
5
to enable Employee to make a decision concerning the purchase of the Restricted
Securities and has been given the opportunity to ask questions of, and receive
answers from, the Company and the management of the Company regarding the
business and prospects of the Company and the terms and conditions of the
issuance of the Restricted Securities. Employee acknowledges that an investment
in the Company involves a high degree of risk and is subject to a substantial
risk of loss.
(b) All certificates and other instruments evidencing the Restricted
Securities shall bear a restrictive legend in substantially the following form:
"The securities represented hereby are subject to the terms and
conditions of the Subscription Agreement dated as of March 2, 2004 (the
"Subscription Agreement") between the Company and Xxxxxxx Xxxxxxx von
Heydekampf (as such agreement may be amended or supplemented subsequent to
such date). Pursuant to the Subscription Agreement, no "Transfer" (as
defined in the Subscription Agreement) of the securities represented
hereby may be effected except as permitted by the Subscription Agreement.
The securities represented hereby have not been issued pursuant to
any registration or similar filing, listing or prospectus or document
delivery requirements under the laws of any Government or the rules,
regulations or guidelines of any stock exchange or quotation system, and
the Company has no obligation to effect any of the foregoing with respect
to the securities. No Transfer of the securities represented hereby may be
made without compliance with any of the foregoing, unless an exemption
thereunder is available in the opinion of counsel for the Company."
4. Representations and Warranties.
(a) Each of the parties hereto represents and warrants to each other
party hereto as follows as of the date of this Agreement:
(i) Such party may execute, deliver and perform this Agreement
without the necessity of such party obtaining any consent, approval,
authorization, registration, filing or waiver or giving any notice or otherwise,
except for any of the foregoing which have been irrevocably obtained or given
and, in the case of applicable securities laws, subject to the representations
and warranties made by Employee in Section 3(a) hereof.
(ii) This Agreement constitutes the legal, valid and binding
obligation of such party, enforceable in accordance with its terms, except as
may be limited by bankruptcy, reorganization, fraudulent conveyance, insolvency
and similar laws of general application relating to or affecting the enforcement
of rights of creditors.
(b) The Company represents and warrants to Employee as follows as of
the date of this Agreement:
(i) This Agreement and the issuance of the Restricted
Securities have been duly authorized by the Board of Directors of the Company.
6
(ii) The Shares will be, when issued and upon the payment in
full of the Purchase Price with respect thereto, duly authorized, validly
issued, fully paid and non-assessable shares of the Company, and will be issued
free of preemptive rights. When issued and upon the payment in full of the
Purchase Price with respect thereto, valid title to the Shares will be acquired
by Employee, free and clear of adverse claims created by the Company.
(iii) The Company has authority to issue: (i) 10 million
shares of Common Stock; (ii) 900 shares of Series A Preferred Stock, par value
$0.01 per share (the "Series A --------- Preferred Stock"); and (iii) five
million shares of Series B Preferred Stock, par value $0.01 per share (the
"Series B Preferred Stock"). The shares of the Company's Series A Preferred
Stock and Series B Preferred Stock which were outstanding prior to April 16,
2002 were converted into an equal number of shares of Common Stock as of that
date. The Company has outstanding as of the date hereof an aggregate of (i)
6,435,701.81 shares of Common Stock (exclusive of 240,000 shares being issued to
the Company's employees, of which the shares being issued hereunder are a part),
(ii) warrants to purchase an additional 25,333.85 shares of Common Stock and
(iii) options to purchase an additional 100,000 shares of Common Stock.
5. Limitation on Transfer of Shares.
(a) Employee shall not effect any Transfer of the Restricted
Securities, except for Permitted Transfers (but subject to the provisions of
Section 3(a) hereof). Any Transfer or attempted Transfer of the Restricted
Securities or any interest therein in violation of the terms and conditions of
this Agreement shall be void and invalid; and the Company may refuse to transfer
any Restricted Securities attempted to be Transferred in violation of this
Agreement. Any Person acquiring Restricted Securities or any interest therein in
violation of the terms and conditions of this Agreement, and any such Restricted
Securities, shall be subject to all of obligations imposed upon or with respect
to the Restricted Securities by this Agreement but shall not be entitled to any
of the rights granted with respect to the Restricted Securities or the holder
thereof by this Agreement.
(b) For purposes hereof, "Permitted Transfers" shall mean and
include the following:
(i) Transfers by Employee of Shares pursuant to any Sale of
the Company or Mandatory Sale of Shares.
(ii) Transfers by Employee to Employee's Related Persons of
Shares, provided that: (A) such Transfers are approved by the Company
(which approval shall not be unreasonably withheld) and will not result in
a Change of Control; and (B) the Transferee executes an agreement
satisfactory to the Company pursuant to which such Transferee agrees that
the Transferred Shares shall continue to be subject to this Agreement
(including without limitation the provisions of this Section 5 and Section
6 and 7 hereof), and that the Transferee shall be subject to this
Agreement the same as Employee (including without limitation with respect
to the provisions of this Section 5 and Sections 6, 7 and 8 hereof) and as
if an original party to this Agreement.
7
(iii) Subsequent to a Qualified Public Offering, Transfers by
Employee of Shares (A) if such Transfers are then permitted under
applicable securities Laws, (B) subject to any restrictions imposed by any
underwriter of the Qualified Public Offering on Transfers of Common Stock
by directors, officers and principal stockholders of the Company (other
than shares of Common Stock which are proposed to be sold by stockholders
in any such Qualified Public Offering), and (C) provided that such
Transfers will not result in a Change of Control.
(c) All Transfers of Shares shall be subject to the provisions of
Section 3(a) hereof and subject to compliance with applicable securities Laws.
6. Sale of the Company.
(a) In the event that the Board of Directors of the Company or the
Majority Holders shall propose to effect a sale or similar transaction affecting
all the outstanding shares of the Company, a merger, consolidation or
reincorporation of the Company or a sale of all or substantially all of the
assets of Company and its Subsidiaries (a "Sale of the Company"), provided that
such Sale of the Company is not with or to any Interested Party, Employee shall
join in, and cooperate in effecting, the Sale of the Company (including without
limitation the Transfer of the Shares pursuant to the Sale of the Company), and
shall vote the Shares in favor of the Sale of the Company if a vote of the
holders of the Common Stock is necessary to effect the Sale of the Company;
provided that Employee receives the same consideration for each Share as every
other holder of the Common Stock.
(b) Employee shall execute and deliver all such documents,
certificates, agreements, stock powers, indemnifications, guarantees and
instruments which Majority Holders shall be required to execute and deliver in
connection with any Sale of the Company, and Employee shall deliver the Shares
free and clear of all Liens.
(c) In the event of any Sale of the Company resulting in the
conversion or exchange of the Common Stock, any securities issued in respect of
the Shares shall, if elected by the Board of Directors of the Company, be deemed
to be "Shares" for purposes of this Agreement; and Employee shall execute any
amendment to this Agreement requested by the Board of Directors to continue the
application of the provisions of this Agreement to any securities received by
Employee in any Sale of the Company.
(d) The Chairman of the Board of Directors of the Company is hereby
appointed as the attorney-in-fact of Employee (and the estate of Employee) with
full power and authority to execute and deliver in the name of Employee (and the
estate of Employee) all such documents, certificates, agreements,
indemnifications, guarantees, endorsements and instruments, and to take all
other actions which the Chairman of the Board of Directors of the Company deems
necessary or desirable, in connection with and in furtherance of any Sale of the
Company, including without limitation (i) to execute any stock powers effecting
the Transfer of the Shares pursuant to the Sale of the Company, and (ii) to
execute or approve any resolutions of the stockholders of the Company in
furtherance of, or desirable to effect, any Sale of the Company. Such
power-of-attorney (which appointment is irrevocable and coupled with an
interest) shall survive the death or disability of
8
Employee and, in the case of any holder of the Restricted Securities which is
not an individual, any liquidation, dissolution or Insolvency Event affecting
any such holder.
7. Mandatory Sale of Shares.
(a) In the event that any of the following shall have occurred (a
"Mandatory Sale Triggering Event"):
(i) the employment of Employee shall have been terminated
prior to any Sale of the Company Effective Date (but other than in
connection with any Sale of the Company);
(ii) an Insolvency Event shall have occurred with respect to
Employee prior to any Sale of the Company Effective Date; or
(iii) Employee (or the estate of Employee) shall have breached
in any respect the provisions of this Agreement;
then the Company shall have the right to require Employee (or the estate of
Employee) to sell to the Company or its assigns (the "Mandatory Sale Option")
all or a portion (as the Company shall elect) of the following amount of Shares
(the "Mandatory Sale Shares"):
If the Mandatory Sale Triggering Event shall have occurred: Shares
------------------------------------------------------------------------- ------
On or before December 31, 2005 .......................................... 60,000
During the period commencing January 1, 2006
and ending December 31, 2006 ............................................ 40,000
During the period commencing January 1, 2007 ............................
and ending December 31, 2007 ........................................... 20,000
Subsequent to December 31, 2007 ......................................... 0
(b) The Mandatory Sale Option may be exercised by the Company in
whole or in part during the 90-day period following the occurrence of a
Mandatory Sale Triggering Event (the "Mandatory Sale Election Period") by notice
in writing given by the Company to Employee (or to the estate of Employee) (a
"Mandatory Sale Election"). However, in the event that, at the time the Company
is entitled to make a Mandatory Sale Election, the Company is prohibited by the
terms of the Credit Documents from consummating a Mandatory Sale of Shares, then
the applicable Mandatory Sale Election Period may be extended by the Company for
a period ending no later than the 30th day following the date on which such
prohibition under the Credit Documents shall have expired or been waived by the
other parties to the Credit Documents, and the number of Shares that the Company
would otherwise be entitled to purchase during the original Mandatory Sale
Election Period shall continue during such extended Mandatory Sale Election
Period; however,
9
the Company shall use its reasonable commercial efforts during and after the
original Mandatory Sale Election Period to obtain a consent or waiver under the
Credit Documents to allow the Company to consummate (but the Company shall not
be obligated to make a Mandatory Sale Election) the Mandatory Sale of Shares.
(c) In the event that the Company shall make a Mandatory Sale
Election, the Company shall purchase, and Employee (or the estate of Employee)
shall sell, the Mandatory Sale Shares within 30 days following the date on which
the Mandatory Sale Election is received by Employee (or the estate of Employee)
(a "Mandatory Sale of Shares"). Employee (or the estate of Employee) shall,
against the payment of the Mandatory Sale Purchase Price, deliver the Mandatory
Sale Shares to the Company or its assigns free and clear of any Liens
accompanied by stock transfer instruments and endorsements satisfactory to the
Company. The Chairman of the Board of Directors of the Company is hereby
appointed as the attorney-in-fact of Employee (and the estate of Employee) with
full power and authority to execute and deliver in the name of Employee (or the
estate of Employee) all such documents, certificates, agreements,
indemnifications, guarantees, endorsements and instruments, and to take all
other actions which the Chairman of the Board of Directors of the Company deems
necessary or desirable, in connection with and in furtherance of any Mandatory
Sale of Shares.
(d) In the event that a Mandatory Sale Election shall be made by the
Company, the "Mandatory Sale Purchase Price" shall be $0.30 per Share which is
the subject of the Mandatory Sale Election. The Mandatory Sale Purchase Price
under this Section 7(d)(ii) shall be proportionately adjusted from time to time
in the case of any stock dividend (including without limitation any dividend or
distribution to holders of the Common Stock of any Common Stock Equivalents),
stock split, stock combination, reclassification or recapitalization affecting
as a class the Common Stock outstanding occurring subsequent to the date hereof
and prior to closing of the Mandatory Sale of Shares; and any such adjustments
shall be made by the Board of Directors of the Company in good faith and shall
be final and binding on the Company and Employee.
8. Voting.
(a) In connection with any matter submitted to the holders of the
Common Stock or other capital stock or securities of the Company, Employee shall
vote all Shares in favor or against such matters (including without limitation
the election of directors of the Company) in the same proportion as the Majority
Holders shall vote their shares of Common Stock and other capital stock and
securities of the Company.
(b) Employee hereby grants to the Chairman of the Board of Directors
of the Company a proxy to vote all Shares as provided in Section 8(a) hereof;
and such proxy shall be irrevocable and shall survive the death or disability of
Employee. In the event that, for any reason, the foregoing proxy shall become
unenforceable or shall have expired, then Employee shall execute and grant a new
proxy on the same terms as provided herein. The proxy granted hereunder, and the
obligations of the undersigned under this Section 8(a), shall be noted in the
voting records and registrar of the Company if required by the Company.
10
(c) The provisions of this Section 8 shall terminate after any
Qualified Public Offering.
9. Further Actions. From time to time, as and when requested by the
Company, Employee shall execute and deliver, or cause to be executed and
delivered, such documents and instruments and shall take, or cause to be taken,
such further or other actions as may be deemed necessary or desirable to carry
out the intent and purposes of this Agreement and to consummate and give effect
to, or to evidence, the transactions hereunder and the provisions of this
Agreement.
10. Miscellaneous.
(a) This Agreement contains the entire agreement among the parties
to this Agreement with respect to the transactions hereunder and supersedes all
prior arrangements or understandings with respect thereto.
(b) The descriptive headings of this Agreement are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement.
(c) All notices or other communications which are required or
permitted under this Agreement shall be in writing and sufficient if delivered
personally or sent by facsimile transmission, internationally recognized
over-night courier or registered or certified mail, postage prepaid, addressed
as follows:
If to the Company: with a copy to:
----------------- --------------
00000 Xxxxxxxx Xxxxxx Stroock & Stroock & Xxxxx LLP
Xxxxxxxxxx, Xxxxxxxxx 00000 000 Xxxxxx Xxxx
Telephone: 000.000.0000 Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000.000.0000 Telephone: 000.000.0000
Attention: Xxxxxxxx X. Xxxxx Facsimile: 212.806.6006
General Counsel Attention: Xxxxxx Xxxxxxx
If to Employee:
Xxxxxxx Xxxxxxx von Heydekampf
0000 Xxxxxx Xxxxx
Xxxxx, XX 00000
Any such notices or communications shall be deemed to have been received: (i) if
delivered personally or sent by facsimile transmission (with transmission
confirmed in a writing) or nationally recognized overnight courier; or (ii) if
sent by registered or certified mail, on the date on which such mailing was
received by the party to whom it was addressed. Any party may by notice as
aforesaid change the address to which notices or other communications to it are
to be delivered or mailed.
11
(d) This Agreement shall be governed by and construed in accordance
with the Laws of the State of Delaware.
(e) Any action, suit or other proceeding initiated by any party
hereto against the others under or in connection with this Agreement may be
brought only in the United States District Court for the District of Delaware or
a Delaware state court located in the City of Wilmington having appropriate
jurisdiction. The parties hereto hereby submit themselves to the jurisdiction of
any such court for the purpose of any such action and agree that service of
process on them in any such action, suit or proceeding may be effected by the
means by which notices are to be given to it under this Agreement.
(f) The parties hereto acknowledge that the award of damages for any
breach of the obligations undertaken by the parties hereto may be insufficient
and inadequate and that the parties hereto shall be entitled to obtain specific
performance of the obligations of the other parties under this Agreement or
other injunctive relief, in addition to damages.
(g) In the event that it shall be necessary for any party to this
Agreement to commence litigation to enforce its rights under this Agreement, and
in the event that it is finally determined by a court of competent jurisdiction
that the party against whom such enforcement is sought is in material breach of
its obligations under this Agreement, then the prevailing party shall be
entitled also to its legal costs in connection with the enforcement of such
rights. In the event that it is finally determined by a court of competent
jurisdiction that the party against whom such enforcement is sought is not in
material breach of its obligations under this Agreement, then such party shall
be entitled to its legal costs in connection with the defense of the action
brought against it.
(h) Neither this Agreement nor any claims or rights under this
Agreement shall be assignable otherwise than by operation of law by any party
without the prior written consent of the other parties, and any purported
assignment by any party without the prior written consent of the other parties
shall be void. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors (whether by merger or
otherwise) and permitted assigns.
(i) Any waiver of any term or condition of this Agreement, or any
amendment or supplementation of this Agreement, shall be effective only if in
writing. A waiver of any breach or failure to enforce any of the terms or
conditions of this Agreement shall not in any way affect, limit or waive a
party's rights under this Agreement at any time to enforce strict compliance
thereafter with every term or condition of this Agreement.
(j) Notwithstanding any other provision of this Agreement, this
Agreement shall not create benefits on behalf of any third party or any other
Person; and this Agreement shall be effective only as among the parties hereto,
their successors and permitted assigns.
(k) In the event that any provision contained in this Agreement
shall be determined to be invalid, illegal or unenforceable in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and the remaining
12
provisions of this Agreement shall not, at the election of the party for whose
benefit the provision exists, be in any way impaired.
(l) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, and it shall not be necessary in making
proof of this Agreement or the terms hereof to produce or account for more than
one of such counterparts.
[The remainder of this page intentionally left blank.]
13
In witness whereof, the undersigned have executed this Agreement as of the
date first above written.
TELEX COMMUNICATIONS, HOLDINGS, INC. Employee:
---------
By: ______________________________ ______________________________
Name: Xxxxxxx X. Xxxxxxxxx XXXXXXX XXXXXXX VON HEYDEKAMPF
Title: Chief Executive Officer
SPOUSAL CONSENT
The undersigned, being the spouse of Xxxxxxx Xxxxxxx von Heydekampf
("Employee"), hereby: (i) consents to the terms and conditions of the
Subscription Agreement dated as of March 2, 2004 (the "Agreement") between Telex
Communications Holdings, Inc. (the "Company") and Employee; (ii) agrees that the
Restricted Securities (as defined in the Agreement) shall be subject to the
terms and conditions of the Agreement; (iii) agrees that all actions taken from
time to time by Employee under the Agreement shall be binding upon the
undersigned without the necessity of any consent, acknowledgment or confirmation
by the undersigned; and (iv) acknowledges that the Company is relying upon the
execution by the undersigned of this Spousal Consent in connection with the
execution and performance by the Company of the Agreement.
In witness whereof, the undersigned has executed this Spousal Consent as
of the 2nd day of March, 2004.
Spouse of Employee:
------------------
___________________________
XXXXX VON HEYDEKAMPF
14
