EXECUTION COPY
AMENDED AND RESTATED CORPORATE OPPORTUNITY AGREEMENT
AMENDED AND RESTATED CORPORATE OPPORTUNITY AGREEMENT, made as of
December 18, 1997 (the "Agreement"), by and among XXXXXXXXXXX ELECTRIC COMPANY,
INC. ("KEC-NJ") (formerly known as GK Telecommunications Inc.), a New Jersey
corporation located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000,
XXXXXXXXXXX ELECTRIC COMPANY, INC. ("KEC-NY") (formerly Xxxxxx Xxxxxxxxxxx,
Inc.), a New York corporation located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (singularly and collectively, "KEC") and IPC INFORMATION SYSTEMS INC.
("IPC"), located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
WHEREAS, IPC is engaged in the business of, among other things,
engineering, manufacturing, developing, marketing, installing and servicing
specialized telecommunication systems, which includes the design, implementation
and servicing of local and wide area networks; and
WHEREAS, KEC-NJ and KEC-NY are each in the business of electrical
contracting which, among other things, includes Cabling Work. For purposes of
this Agreement, Cabling Work means installation of low voltage wire, cable and
related devices intended to serve as local or wide area network for voice, data
and/or video communication, which installation does not require such work to be
performed by a licensed electrician but specifically excludes installations
intended to transmit signaling in connection with mechanical controls (e.g.,
HVAC), fire safety and security systems; and
WHEREAS, IPC is also involved in Cabling Work, KEC is desirous of
continuing to receive referrals from IPC for electrical work and IPC is desirous
of KEC not competing for certain Cabling Work;
NOW, THEREFORE, the parties agree as follows:
1. KEC will be permitted to bid for or accept any job requiring
KEC to do Cabling Work if KEC has notified IPC in writing that
KEC intends to bid for such job and, within five (5) business
days of IPC's receipt of such notice, KEC either (a) fails to
receive notice from IPC of IPC's intention to bid for or
accept such job or (b) receives notice from IPC of IPC's
intention not to bid for or accept such job, provided that
nothing herein shall prohibit KEC from doing Cabling Work
pursuant to a subcontract from IPC.
2. As long as IPC believes that KEC is a qualified electrical
contractor, IPC, in its sole discretion, may continue to refer
to KEC opportunities which IPC may from time to time identify
for electrical contracting work related to Cabling Work bid on
by IPC.
3. The term of this Agreement (the "Term") shall be for a period
of three (3) years from the date hereof, except that the
Agreement may be terminated as follows:
(a) IPC may terminate this Agreement at any time, with or
without cause, upon ninety (90) days' prior written
notice to KEC.
(b) Either party may terminate this Agreement upon five
(5) days' notice, upon the happening of any of the
following conditions:
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(i) In the event of a material default by the
other party in the performance of its
obligations hereunder, which default is not
cured within five (5) days after the receipt
of written notice thereof; or
(ii) In the event the other party files a
voluntary petition under the Bankruptcy
Code, or for other debtor or insolvency
relief.
(c) If each of the Amended and Restated Labor Pool
Agreement, dated the date hereof, by and between IPC
and KEC-NY and the Amended and Restated Labor Pool
Agreement, dated the date hereof, by and between IPC
and KEC- NJ (collectively, the "LPAs") are
terminated, then this Agreement shall terminate and
be of no further force and effect unless IPC elects,
in its sole discretion, to make payments in an
aggregate of $500,000 per year (in equal monthly
payments) to KEC. Upon the termination of the LPAs,
IPC shall give prompt notice to KEC of its election
under this Section 3(c).
4. Any notice required under this Agreement shall be in writing
and shall be served by Certified Mail, return receipt
requested, directed to the parties, at the addresses indicated
first above. Notices otherwise validly given shall be
effective two (2) days after the mailing, notwithstanding the
date of actual receipt, or the failure or refusal of a party
to sign the return receipt. The address of either party may be
changed by such party giving notice to the other.
5. The rights and obligations of this Agreement are not
assignable. In the event of any merger or consolidation of
either party, or upon the appointment of a receiver for the
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property of either of the parties hereto, this Agreement
shall, at the option of the other party, immediately
terminate.
6. The failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a
waiver of such term, covenant or condition. A waiver of any
provision must be made in writing and signed by the party
against whom its enforcement is sought. A waiver at any one or
more times shall not be deemed a waiver at any other time or
times.
7. A determination that any provision of this Agreement is
invalid shall not affect the validity or enforceability of any
other provision.
8. This Agreement contains the entire understanding of the
parties relating to the subject matter hereof and supersedes
all prior agreements relating to the subject matter hereof. No
modification of this Agreement shall be valid unless made in
writing and signed by the parties.
9. This Agreement shall be governed by and construed pursuant to
the laws of the State of New York as an agreement made and
performed in the State of New York, without regard to any
principle of conflicts of law that would cause the
applications of the laws of any jurisdiction other than the
State of New York.
10. It is a condition precedent to the effectiveness of this
Agreement that the "Merger" under and as defined in the
Agreement and Plan of Merger, dated the date hereof, by and
between Arizona Acquisition Corp. and IPC, shall have been
consummated.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized officers the day and year first above written.
XXXXXXXXXXX ELECTRIC COMPANY, INC.,
a New Jersey corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxxx
Title: President
XXXXXXXXXXX ELECTRIC COMPANY, INC.,
a New York corporation
By: /s/ Xxxxx X. Xxxxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxxxx
Title: President
IPC INFORMATION SYSTEMS INC.
By: /s/ S.T. Xxxxxx
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Name: S.T. Xxxxxx
Title: President & C.E.O.
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