Exhibit (d)(4)
VOTING AND OPTION AGREEMENT
VOTING AND OPTION AGREEMENT dated as of December 10, 2000 by and among
Xxxxxx Xxxxx XxxX, a limited liability company organized under the laws of
Germany ("Bosch"), Xxxx X. Xxxxxxxxx ("Kostusiak") and Xxxxx X. Xxxxxxx
("Xxxxxxx"; together with Kostusiak, the "Shareholders").
WHEREAS, Bosch and Detection Systems, Inc. (the "Company") have entered
into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"), pursuant to which the parties thereto have agreed, upon the terms
and subject to the conditions set forth therein, to merge the Company with and
into a wholly owned subsidiary of Bosch (the "Merger") (capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Merger
Agreement);
WHEREAS, as of the date hereof, Kostusiak and Xxxxxxx are the record
and beneficial owners of, or have the sole right to vote and dispose of, 383,721
and 203,037 shares (the "Shares") of the Common Stock, $.05 par value, of the
Company (the "Company Common Stock"), respectively; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Bosch has required that each Shareholder agree, and each of the
Shareholders is willing to agree, to the matters set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the agreements
set forth below, the parties hereto agree as follows:
1. Representations and Warranties of Shareholders. Each Shareholder
severally represents and warrants to Bosch as follows:
1.1 Binding Agreement. Such Shareholder has the capacity to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. Such Shareholder has duly and validly executed and
delivered this Agreement and this Agreement constitutes a legal, valid and
binding obligation of such Shareholder, enforceable against such Shareholder in
accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
1.2 No Conflict. Neither the execution and delivery of this
Agreement, the consummation of the transactions contemplated hereby, nor the
compliance with any of the provisions hereof, (a) in the case of such
Shareholder, require any consent, approval, authorization or permit of,
registration, declaration or
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filing (except for filings under the Exchange Act) with, or notification to, any
governmental entity, (b) result in a default (or an event which, with notice or
lapse of time or both, would become a default) or give rise to any right of
termination by any third party, cancellation, amendment or acceleration under
any contract, agreement, instrument, commitment, arrangement or understanding,
or result in the creation of a security interest, lien, charge, encumbrance,
equity or claim with respect to any of the Shares, (c) require any material
consent, authorization or approval of any person other than a governmental
entity, or (d) violate or conflict with any order, writ, injunction, decree or
law applicable to such Shareholder or the Shares.
1.3 Ownership of Shares. Kostusiak and Xxxxxxx are the record
and beneficial owners of, or otherwise have the right to dispose of, 383,721 and
203,037 shares of Company Common Stock, respectively, free and clear of any
security interests, liens, charges, encumbrances, equities, claims, options
(other than the Option or pledges pursuant to commercially customary brokers
margin accounts which would not restrict the exercise of the Option upon payment
of the margin loan) or limitations of whatever nature and free of any other
limitation or restriction (including any restriction on the right to vote, sell
or otherwise dispose of the Shares). There are no outstanding options or other
rights to acquire from such Shareholder or obligations of such Shareholder to
sell or to acquire, any shares of Company Common Stock.
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2. Representations and Warranties of Bosch. Bosch represents and
warrants to each of the Shareholders as follows:
2.1 Binding Agreement. Bosch is a limited liability company
duly organized, validly existing and in good standing under the laws of Germany
and has full power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Bosch and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Management of
Bosch. Bosch has duly and validly executed this Agreement and this Agreement
constitutes a legal, valid and binding obligation of Bosch, enforceable against
Bosch in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights generally and by general equitable principles
(regardless of whether enforceability is considered in a proceeding in equity or
at law).
2.2 No Conflict. Neither the execution and delivery of this
Agreement, the consummation by Bosch of the transactions contemplated hereby,
nor the compliance by Bosch with any of the provisions hereof will (a) conflict
with or result in a breach of any provision of its articles of organization,
by-laws or other similar organizational documents, (b) require any consent,
approval, authorization or permit of, registration, declaration or filing
(except for filings under the Exchange
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Act) with, or notification to, any governmental entity, (c) result in a default
(or an event which, with notice or lapse of time or both, would become a
default) or give rise to any right of termination by any third party,
cancellation, amendment or acceleration under any contract, agreement,
instrument, commitment, arrangement or understanding.
3. Transfer and Other Restrictions.
3.1 Certain Prohibited Transfers. Each Shareholder agrees not
to:
(a) sell, transfer, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment or other disposition of, shares of Company Common Stock owned by him,
other than as provided in this Agreement;
(b) grant any proxies or enter into a voting agreement or
other arrangement with respect to any shares of Company Common Stock owned by
him, other than this Agreement; nor
(c) deposit any shares of Company Common Stock owned by him
into a voting trust.
3.2 Option
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(a) Each of the Shareholders hereby grants to Bosch the
exclusive and irrevocable option to purchase (the "Option"), on the terms and
conditions hereinafter set forth, all of the Shares owned by him, together with
(i) any additional shares of capital stock of the Company acquired by the
Shareholder after the date hereof and prior to the exercise of the Option, or
which such Shareholder is entitled to receive from the Company by reason of
being a record holder during such period, and (ii) any securities into which any
such shares or additional shares shall have been converted or changed whether by
amendment to the Certificate of Incorporation of the Company, merger,
consolidation or otherwise.
(b) The Option may be exercised by Bosch in whole, but not in
part, at any time (the "Option Period") commencing January 2, 2001 and expiring,
without any action by Bosch or the Shareholders, upon the first to occur of the
following: (a) Purchaser fails to commence the Offer within 10 business days
after the date hereof, except by reason of the conditions set forth in paragraph
(e) of Annex A to the Merger Agreement, (b) Purchaser fails to purchase Shares
pursuant to the Offer, by reason of the conditions set forth in paragraphs (a),
(b), (c), (d) or (g) of Annex A to the Merger Agreement, (c) Bosch terminates
the Merger Agreement pursuant to Section 7.1(a), (b), (c) or (e)(ii),(iii) or
(iv) of the Merger Agreement, (d) the Company terminates the Merger Agreement
pursuant to Section 7.1(a), (b), (c) or (d)(iv) of the Merger Agreement or (e)
the Company terminates the Merger
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Agreement pursuant to Section 7.1(d)(ii) or (iii) of the Merger Agreement, but
only if the failure of Purchaser to commence the Offer or purchase Shares is not
due to the failure of the condition set forth in paragraph (e) of Annex A to the
Merger Agreement.
(c) In the event Bosch wishes to exercise the Option, Bosch
shall send a written notice to the Shareholders specifying a place and date (not
less than two nor more than ten business days from the date such notice is
given) for the closing of the purchase of the Shares (the "Closing").
(d) The price to be paid for the Shares pursuant hereto (the
"Option Price") shall be $18 per Share, payable in cash.
(e) At the Closing, each Shareholder will deliver to Bosch a
certificate or certificates representing the Shares owned by him, duly endorsed
for transfer or accompanied by appropriate stock powers, together with evidence
satisfactory to Bosch of payment of all stock transfer taxes or exemption
therefrom and Bosch shall issue or deliver to each Shareholder a cash amount to
which such Shareholder is entitled pursuant to clause (d) above.
(f) In the event that: (i) the Option is exercised, (ii) the
Merger is not consummated and (iii) any party other than Bosch and its
subsidiaries acquires, though merger or otherwise, all or substantially all of
the business or assets of the Company pursuant to a transaction or series of
transactions providing
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aggregate consideration to shareholders of the Company greater than $18 per
share of Company Common Stock (the "Alternative Consideration"), then within 5
days following receipt of such consideration by Bosch or its affiliates, Bosch
shall pay to each of the Shareholders the product of (x) the amount by which the
Alternative Consideration exceeds $18 and (y) the number of Shares sold by such
Shareholder to Bosch pursuant to the Option.
3.3 Tender. Each of the Shareholders agrees to tender into the
Offer the Shares owned by him or of which he otherwise has the right to dispose,
and to not withdraw such Shares unless and until the Offer expires or is
terminated.
3.4 Efforts. Each Shareholder agrees not to take any action
which would make any representation or warranty of the Shareholder herein untrue
or incorrect in any material respect or take any action that would have the
effect of preventing or disabling such Shareholder from performing its
obligations under this Agreement.
3.5 Additional Shares. Each Shareholder hereby agrees, until
the end of the Option Period, to promptly notify Bosch of the number of any new
shares of Company Common Stock acquired by the Shareholder, if any, after the
date hereof.
4. Voting Agreement. Each Shareholder hereby agrees to attend all
meetings of the shareholders of the Company. Each Shareholder retains all
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voting rights with respect to the Shares owned by him; provided, however, that
at any meeting of the shareholders of the Company, however called, or in
connection with any action by written consent by the shareholders of the
Company, he shall vote all of the Shares owned by him:
(i) in favor of the transactions contemplated by the Merger
Agreement;
(ii) against any action or agreement that could result in a
breach in any material respect of any covenant, representation or warranty or
any other obligation of the Company under the Merger Agreement;
(iii) against any action or agreement that would impede,
interfere with or discourage the transactions contemplated by the Merger
Agreement (or attempt to do any of the foregoing), including, but not limited
to: (A) any extraordinary corporate transaction, such as a merger, rights
offering, reorganization, recapitalization or liquidation involving the Company
or any of its subsidiaries, (B) a sale or transfer of a material amount of
assets of the Company or any of its subsidiaries or the issuance of any
securities of the Company or any subsidiary, (C) any change in the executive
officers or Board of Directors of the Company or (D) any change in the present
corporate structure or business of the Company; and
(iv) in the manner specified by Bosch from time to time with
respect to any other matter which is reasonably likely to contradict any
provision of
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this Agreement or the Merger Agreement or may make it more difficult for or less
desirable to Bosch to consummate the Merger or may delay or hinder the
consummation of the Merger.
5. Proxy. Each Shareholder hereby constitutes and appoints Xxxx
Xxxxxxxx and Xxxx Xxxx, and each of them, with full power of substitution, his
true and lawful proxy and attorney-in-fact to vote the Shares as specified in
Section 4 hereof. This proxy shall be deemed coupled with an interest, and is
irrevocable.
6. Legend. Each Shareholder shall surrender to the Company all
certificates representing the shares of Company Common Stock owned by him, and
instruct the Company to place the following legend on such certificates:
"The shares of common stock represented by
this certificate are subject to a Voting and Option Agreement,
dated as of December 10, 2000, by and among Xxxxxx Xxxxx XxxX,
Xxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxx."
7. Specific Enforcement. The parties hereto acknowledge that damages
would be an inadequate remedy for a breach of this Agreement and that the
obligations of the parties hereto shall be specifically enforceable, in addition
to any other remedy which may be available at law or in equity.
8. Commissions. Each Shareholder and Bosch, in connection with the
transactions contemplated hereby, severally agree to indemnify and hold the
other harmless from and against any and all claims, liabilities or obligations
with
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respect to any brokerage fees, commissions or finders' fees asserted by any
person on the basis of any act or statement alleged to have been made by such
party or its Affiliate.
9. Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses.
10. Amendment. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):
If to Bosch, to:
Xxxxxx Xxxxx XxxX
Xxxxxx Xxxxx Xxxxx 0
00000 Xxxxxxxxx
Xxxxxxx
Attention: Dr. Heiko Xxxxxx
Telephone No.:0000 000 000 0000
Telecopy No.: 0049 711 811 6760
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with a copy to:
Coudert Brothers
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.:(000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxx XxXxxxxxx
If to Kostusiak, to:
Xxxx X. Xxxxxxxxx
0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
If to Xxxxxxx, to:
Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
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12. Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
13. Successors and Assigns. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties hereto, except that Bosch may assign this agreement to Purchaser,
provided Bosch remains liable for Purchaser's performance hereof. This Agreement
will be binding upon, inure to the benefit of and be enforceable by each party
and such party's respective heirs, beneficiaries, executors, representatives and
permitted assigns.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
15. Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of New
York (without giving effect to the provisions thereof relating to conflicts of
law).
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16. Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
17. Termination. This Agreement shall terminate upon the earliest of
(i) expiration of the Option Period, (ii) the purchase of the Shares pursuant to
the Option, (iii) the agreement of the parties hereto to terminate this
Agreement and (iv) consummation of the Merger.
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by each Shareholder and a duly authorized officer of Bosch on the day
and year first written above.
Xxxxxx Xxxxx XxxX
By: s/ Xxxxx Xxxxx
-------------------------------
Name: Xx. Xxxxx Xxxxx
Title: Senior Vice President
By: s/ Heiko Xxxxxx
-------------------------------
Name: Dr. Heiko Xxxxxx
Title: Director
s/ Xxxx X. Xxxxxxxxx
-------------------------------
Xxxx X. Xxxxxxxxx
s/ Xxxxx X. Xxxxxxx
-------------------------------
Xxxxx X. Xxxxxxx
Acknowledged and agreed,
Bosch Security Systems Corporation
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
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