EXHIBIT 2.5
AMENDMENT NO. 4 TO
CONTRIBUTION AGREEMENT
THIS AMENDMENT NO. 4 dated as of October 25, 2001 (this "AMENDMENT") to the
Contribution Agreement dated as of July 30, 1997 and amended on October 27,
1997, February 29, 2001 and June 21, 2001 (the "CONTRIBUTION AGREEMENT"), by and
between Protection One, Inc., a Delaware corporation ("PROTECTION ONE"), and
Western Resources, Inc., a Kansas corporation ("WESTERN").
Capitalized terms used but not defined in this Amendment shall have the
meaning given such terms in the Contribution Agreement.
W I T N E S S E T H :
WHEREAS, Section 3.10 of the Contribution Agreement currently provides that
the Protection One Board of Directors shall have twelve directors and that from
and after the second anniversary of the Closing, and for so long as Western
owns, directly or indirectly, more than 50 percent of the issued and outstanding
Common Stock of Protection One, Western shall vote all shares of Common Stock
beneficially owned by Western to elect, and Protection One shall use its best
efforts to cause to be elected, one individual from the executive officers of
Protection One, at least three Independent Directors, and eight individuals
selected by Western; and
WHEREAS, Protection One and Western desire to amend Section 3.10 of the
Contribution Agreement to provide that the Protection One Board of Directors
shall have not less than nine directors nor more than twelve directors, as
determined from time to time by the Board of Directors, and that Western shall
vote all shares of Common Stock beneficially owned by Western to elect, and
Protection One shall use its best efforts to cause to be elected, one individual
from the executive officers of Protection One, at least three Independent
Directors, and the number of individuals selected by Western necessary to fill
the remaining positions on the Board of Directors; and
WHEREAS, pursuant to Section 6.2 of the Contribution Agreement, Protection
One may not amend, supplement or otherwise modify any provision of the
Contribution Agreement unless such amendment, supplement or modification shall
have been approved by the affirmative vote of a majority of the Continuing
Directors; and
WHEREAS, Xx. Xxx X. Xxxx and Xx. Xxxxx X. Xxxxxx constitute all of the
Continuing Directors and desire to authorize the parties to amend the
Contribution Agreement as contemplated herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
Section 1. AMENDMENT TO THE CONTRIBUTION AGREEMENT. Section 3.10 of the
Contribution Agreement is hereby amended by deleting such section in its
entirety and substituting the following section in its place:
3.10. ELECTION TO PROTECTION ONE'S BOARD OF DIRECTORS. From and
after October 25, 2001, the Protection One Board of Directors shall have
not less than nine directors nor more than twelve directors, as determined
from time to time by the Board of Directors. From and after October 25,
2001, and for so long as Western shall own, directly or indirectly, more
than 50 percent of the issued and outstanding Common Stock of Protection
One, Western shall vote all shares of Common Stock beneficially owned by
Western to elect, and Protection One shall use its best efforts to cause to
be elected, (i) one individual selected from the executive officers of
Protection One, (ii) at least three individuals who are independent persons
("Independent Directors") and (iii) the number of individuals selected by
Western necessary to fill the remaining positions on the Board of Directors
(some or all of whom, at Western's sole discretion, may be "independent
persons"). For purposes of this Agreement, "independent persons" shall mean
a person who (i) is in fact independent, (ii) does not have any direct
financial interest or any material indirect financial interest in Western,
Protection One or any entity or person that beneficially owns greater than
two percent of the outstanding Protection One Common Stock or any of their
respective affiliates, and (iii) is not connected with Western, Protection
One or any entity or person that beneficially owns greater than two percent
of the outstanding Protection One Common Stock or any of their respective
affiliates as an officer, employee, consultant, agent, representative,
trustee, partner, director (other than of Protection One) or person
performing similar functions. Any vacancy resulting from a person selected
by Western no longer serving as a director may be filled from time to time
by the remaining directors selected by Western then serving on the Board of
Directors. The Chairman of the board of directors of Protection One at all
times shall be a person selected by Western.
Section 2. REPRESENTATIONS AND WARRANTIES. Each party hereto hereby
represents and warrants that (i) it has the power and authority and the legal
right to make, deliver and perform this Amendment, (ii) it has taken all
necessary actions to authorize the execution, delivery and performance of this
Amendment, and (iii) this Amendment is legal, valid and binding on, and
enforceable against, such party.
Section 3. CONTINUING EFFECT. Except as expressly waived or otherwise
agreed hereby, the Contribution Agreement shall continue to be and shall remain
in full force and effect in accordance with its terms. This Amendment shall be
limited precisely as drafted and shall not constitute a waiver or amendment of
any other term, condition or provision of the Contribution Agreement.
Section 4. GOVERNING LAW. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the
State of Delaware (without regard to principles of conflict laws).
Section 5. COUNTERPARTS. This Amendment may be executed by the parties
hereto on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument as of
the date and year first above written.
PROTECTION ONE, INC.
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Chief Executive Officer
WESTERN RESOURCES, INC.
By: /s/ Xxxx Xxxxx
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Name: Xxxx X. Xxxxx
Title: Senior Vice President and
Chief Financial Officer
AGREED TO AND
APPROVED HEREBY:
/s/ Xxx X. Xxxx
Xxx X. Xxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
