EXHIBIT 10(HH)
STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT dated as of February 23, 1998, between
Guardian International, Inc., a Nevada corporation (the "Company"), and Westar
Security, Inc., a Kansas corporation (the "Purchaser").
RECITALS
1. The Company is entering into a Stock Purchase Agreement with the
shareholders of Mutual Central Alarm Services, Inc., a New York corporation,
dated of even date herewith (the "Stock Purchase Agreement"), pursuant to which
the Company will acquire 100% of the outstanding shares of the Common Stock, par
value $.01, of Mutual for an aggregate purchase price of $14,000,000 (the
"Transaction").
2. The Purchaser has consented to the Transaction, as required by the
Stock Subscription Agreement dated as of October 21, 1997 between the Company
and Westar Capital, Inc., a Kansas corporation and an affiliate of the Purchaser
(the "Prior Stock Subscription Agreement"). On November 24, 1997, Westar
Capital, Inc. assigned its rights and obligations under the Prior Stock
Subscription Agreement to the Purchaser.
3. The Purchaser desires to acquire from the Company, and the Company
wishes to sell to the Purchaser, certain securities to be issued by the Company,
on the terms and conditions set forth below.
AGREEMENT
1. AUTHORIZATION OF SECURITIES; PURCHASE PRICE. The Company has
authorized the issuance and sale to the Purchaser of 1,600,000 shares of Series
B 10 1/2% Convertible Cumulative Preferred Stock, par value $.001 per share (the
"Preferred Shares"), for an aggregate purchase price of $4,000,000. The
Preferred Shares will have the terms and conditions set forth in the Certificate
of Designations attached hereto as Exhibit A (the "Certificate of
Designations").
2. CLOSING. The Company will sell to the Purchaser and, subject to the
terms and conditions hereof, the Purchaser will purchase from the Company, at
the closing provided for in this Section 2, the Preferred Shares. The closing of
the sale and purchase of the Preferred Shares (the "Closing") shall take place
at the offices of the Company at 0000 X. 00xx Xxxxxxx, Xxxxxxxxx, Xxxxxxx, 00000
or by mail if the parties agree, unless otherwise agreed between the Purchaser
and the Company. At the Closing, the Company will deliver to the Purchaser one
or
more stock certificates (as the Purchaser may designate), each dated the date
of the Closing (the "Closing Date") and duly registered in the Purchaser's name
(or in the name of any nominee the Purchaser designates to hold the Preferred
Shares for its account), representing the Preferred Shares against receipt of
$4,000,000 from the Purchaser by delivery of federal funds payable to the
Company. Purchaser agrees that it will send by wire transfer to the Trust
Account (in accordance with the wire instructions attached as Exhibit F) of
Steel Xxxxxx & Xxxxx LLP the $4,000,000 to be held in escrow pending the
satisfaction of all conditions precedent to the closing of the Transaction.
3. DELIVERIES AT CLOSING.
3.1 OPINIONS OF COUNSEL. The Purchaser shall have received an opinion
from Steel Xxxxxx & Xxxxx LLP, counsel to the Company, dated the Closing Date
and substantially in the form of Exhibit B, and an opinion from Xxxxxx Xxxxxx &
Xxxxxxx, Nevada counsel to the Company, dated the Closing Date in the form of
Exhibit C, and the Company shall have received an opinion from Xxxxx Xxxxxxxx,
Esq., counsel of the Purchaser, dated the Closing Date and substantially in the
form of Exhibit D.
3.2 WAIVERS AND CONSENTS. All waivers and consents required to be
obtained by the Company in connection with the Closing shall be satisfactory in
substance and form to the Purchaser, including but not limited to the consent of
Xxxxxx Financial, Inc.
3.3 CORPORATE ACTION.
a. The Company shall have delivered to the Purchaser certified
copies of (a) the resolutions duly adopted by the full board of directors of the
Company authorizing the execution, delivery and performance of this Agreement,
the issuance and sale of the Preferred Shares, the reservation for issuance upon
conversion of the Preferred Shares of an aggregate of 1,600,000 shares of Class
A Voting Common Stock, par value $.001 per share, and the consummation of all
other transactions contemplated by this Agreement, (b) the Articles of
Incorporation and Bylaws of the Company, each as amended to date, and (c)
incumbency of the Company's officers.
b. The Purchaser shall have delivered to the Company a
secretary's certificate confirming the resolutions duly adopted by the full
board of directors of the Purchaser authorizing the execution, delivery and
performance of this Agreement and an incumbency of the Purchaser's officers.
3.4 CERTIFICATE OF DESIGNATIONS. The Certificate of Designations shall
have been filed with the Secretary of State of the State of Nevada and shall be
in full force and effect under the laws of such state.
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4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants that:
4.1 ORGANIZATION; GOOD STANDING; VALID AND BINDING. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada and has all requisite corporate power and authority to
own and operate its properties, to carry on its business as now conducted and
proposed to be conducted, to enter into this Agreement, to issue and sell the
Preferred Shares, and to carry out the terms hereof and thereof. Each of the
Company's subsidiaries is duly organized, validly existing and in good standing
under the laws of its state of incorporation. Each of the Company and its
subsidiaries is duly qualified as a foreign corporation to do business, and is
in good standing in each jurisdiction where the character of its properties
owned or leased or the nature of its activities makes qualification necessary,
except where failure to so qualify would not individually or in the aggregate
have a material adverse change in the business, assets, liabilities, prospects,
results of operations or condition, financial or otherwise, of the Company and
its subsidiaries, taken as a whole ("Material Adverse Change"). The execution,
delivery and performance of this Agreement and all other agreements contemplated
hereby to which the Company is a party have been duly authorized by the Company.
Each of such agreements has been duly and validly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, liquidation, moratorium, receivership, conservatorship,
readjustment of debts, fraudulent conveyance or similar laws affecting the
enforcement of creditors rights generally.
4.2 INFORMATION FURNISHED; BUSINESS. The Company has furnished the
Purchaser with true and complete copies of (a) the Company's Annual Report on
Form 10-KSB for the fiscal year ended December 31, 1996, as amended to date, (b)
any and all of the Company's Current Reports on Form 8-K which have been filed
with the Securities and Exchange Commission ("SEC") since December 31, 1996, (c)
the Company's Quarterly Reports on Form 10-QSB for the quarters ended March 31,
1997, June 30, 1997 and September 30, 1997, as amended to date (collectively
"SEC Documents"), and (d) all other reports and documents filed by the Company
with the SEC under the Exchange Act since January 1, 1997. The financial
statements contained in the SEC Documents have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis (except
as stated in the notes thereto), and present fairly (subject, in the case of
unaudited statements, to normal recurring adjustments) the financial condition
of the Company as of their respective dates and the results of operations and
cash flows for the respective periods. Except as disclosed in the SEC Documents
or as set forth on Schedule 4.2, since January 1, 1997 there has been no
Material Adverse Change. Since January 1, 1997, the Company has made all filings
required to be made in compliance with the Exchange Act, and such filings, as
modified by subsequent reports filed pursuant to the Exchange Act conformed in
all material respects to the requirements of the Exchange Act, and the rules and
regulations of the SEC thereunder, and such filings did not contain any untrue
statement of a material fact and did not omit to state any material fact
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necessary in order to make the statements contained therein not misleading in
light of the circumstances under which such statements were made as of their
respective dates of filing.
4.3 LITIGATION. Except as disclosed on Schedule 4.3, there are no
actions, proceedings or investigations nor any judgment, decree, injunction,
rule, or order pending or threatened which question or affect the validity of
this Agreement, the Preferred Shares or any action taken or to be taken pursuant
hereto or thereto, or which might result, either in any case or in the
aggregate, in any Material Adverse Change, or in any liabilities on the part of
the Company which, either in any case or in the aggregate, are or might be
material and which liabilities have not been disclosed in the notes to the
Company's financial statements contained in the SEC Documents and adequately
reserved for on the Company's balance sheet as at September 30, 1997.
4.4 COMPLIANCE WITH OTHER INSTRUMENTS. Except for consents and
approvals required to be obtained as set forth on Schedule 4.4, the execution,
delivery and performance of this Agreement and the other agreements contemplated
hereby, and the issuance of the Preferred Shares, do not and will not result in
any violation of or be in conflict with or constitute (with or without due
notice or lapse of time or both) a default or result in an adverse event under
any term of the Articles of Incorporation, as amended (the "Charter"), or
By-Laws of the Company, or of any material agreement, instrument, obligation,
license, judgment, decree, order, statute, rule or governmental regulation
applicable to the Company, its assets or properties or result in the imposition
or creation of any lien or encumbrance upon any asset or property of the
Company. The Company is not in violation of any term of its Charter or By-Laws,
or of any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation which is material to the business, operations, prospects
or affairs of the Company.
4.5 GOVERNMENTAL CONSENTS. Except for such consents, approvals and
authorizations as are set forth on Schedule 4.5, neither the Company, nor any of
its subsidiaries is or will be required to obtain any consent, approval or
authorization of, or to make any declaration or filing with, any governmental
authority as a condition precedent to the valid execution and delivery of this
Agreement and the other agreements contemplated hereby, and, the valid offer,
issue and delivery of the Preferred Shares. Schedule 4.5 correctly sets forth
the names and jurisdictions of domicile of each subsidiary of the Company.
4.6 CAPITAL STOCK. Schedule 4.6 correctly describes each class of the
authorized capital stock of the Company on the date hereof, including, as to
each such class, the number of shares thereof authorized and the number of
shares thereof issued and outstanding. All of the outstanding shares of the
Company are validly issued and outstanding, fully paid and non-assessable and
free of preemptive rights. The Company has no outstanding securities convertible
into or exchangeable for capital stock and no outstanding options, warrants or
other rights to subscribe for or purchase, or agreements for the purchase from
or the issue or sale by the Company of, capital stock, other than as set forth
in such Schedule 4.6, which correctly describes each such security, right or
agreement and the number of shares subject thereto, whether or not
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reserved for on the books of the Company. Schedule 4.6 also sets forth all
shares of capital stock reserved or required for issuance pursuant to any
employee benefit, stock option or other similar plan.
4.7 DISCLOSURE. There is no fact known to the Company which materially
adversely affects the business, operations, affairs, prospects, properties,
assets or condition of the Company which has not been set forth in this
Agreement or in the schedules attached hereto. No representation or warranty
contained in this Agreement, the other agreements contemplated hereby, or the
Schedules hereto or thereto, or any officers certificate furnished thereunder,
at the date hereof, or at the Closing Date contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary to make the statements contained herein or therein not misleading.
4.8 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as disclosed in the
SEC Documents or as set forth on the schedules attached hereto, since September
1, 1997, the Company has in all material respects conducted its business in the
ordinary course consistent with past practices.
4.9 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on Schedule
4.9 and in the SEC Documents, and liabilities incurred after September 1, 1997
in the ordinary course of business and consistent with past practices, the
Company does not have any liabilities or obligations (whether absolute, accrued,
contingent or otherwise) of a nature required by GAAP to be reflected in a
consolidated balance sheet (or reflected in the notes thereto).
4.10 NO DEFAULT. Except as set forth on Schedule 4.10 hereto, neither
the Company nor any of its subsidiaries is in violation or breach of, or default
under (and no event has occurred which with notice or the lapse of time or both
would constitute a violation or breach of, or a default under) any term,
condition or provision of (i) any material note, bond, mortgage, deed of trust,
security interests, indenture, license, contract, agreement, plan or other
instrument or obligation to which the Company or any such subsidiary is a party
or by which the Company or any such subsidiary or any of their respective
properties or assets may be bound or affected, (ii) any order, writ, injunction,
decree, statute, rule or regulation applicable to the Company, any subsidiary of
the Company or any of their respective properties or assets or (iii) any
registration, license, permit or other consent or approval of any governmental
agency, except in each case for breaches, defaults or violations which would not
individually or in the aggregate have a material adverse effect on the business,
assets, liabilities, results of operations or condition, financial or otherwise,
of the Company and its subsidiaries, taken as a whole.
5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
represents and warrants that:
5.1 NO DISTRIBUTION. The Purchaser is acquiring the Preferred Shares
for its own account with the present intention of holding such securities for
purposes of investment, and it
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has no intention of selling such securities in a public distribution in
violation of the federal securities laws or any applicable state securities
laws. The Purchaser understands that the Preferred Shares are "restricted
securities" as defined in Rule 144 under the Securities Act of 1933, as amended
(the "Securities Act"), and have not been registered pursuant to the provisions
of the Securities Act, in as much as the proposed purchase of the Preferred
Shares is taking place in a transaction not involving any public offering.
5.2 SOPHISTICATION. The Purchaser is knowledgeable, experienced and
sophisticated in financial and business matters and is able to evaluate the
risks and benefits of the investment in the Preferred Shares.
5.3 ECONOMIC RISK. The Purchaser is able to bear the economic risk of
its investment in the Preferred Shares for an indefinite period of time because
the Preferred Shares have not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the Securities
Act or an exemption from such registration is available.
5.4 ACCESS TO INFORMATION. The Purchaser has been furnished or
otherwise had full access to such other information concerning the Company and
its subsidiaries as it has requested and that was necessary to enable the
Purchaser to evaluate the merits and risks of an investment in the Company, and
after a review of this information, has had an opportunity to ask questions and
receive answers concerning the financial condition and business of the Company
and the terms and conditions of the securities purchased hereunder, and has had
access to and has obtained such additional information concerning the Company
and the securities as it deemed necessary. The Purchaser has carefully reviewed
the information furnished pursuant to Section 4.2.
5.5 ACCREDITED INVESTOR. The Purchaser is an "accredited investor" as
defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
5.6 LEGEND. The Purchaser understands that the certificate(s)
representing the Preferred Shares (and any Common Stock issued upon conversion
of the Preferred Shares) will bear restrictive legends thereon as follows:
"The securities represented by this certificate have been acquired
directly or indirectly from the Company without being registered under
the Securities Act of 1933, as amended (the "Act"), or any other
applicable securities laws, and are restricted securities as that term
is defined under Rule 144 promulgated under the Act. These securities
may not be sold, pledged, transferred, distributed or otherwise
disposed of in any manner unless they are registered under the Act and
all other applicable securities laws, or unless the request for
transfer is accompanied by a favorable opinion of counsel, reasonably
satisfactory to the Company, stating that the transfer will not result
in a violation of the Act and all other applicable state securities
law."
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5.7 ADDITIONAL PURCHASER REPRESENTATIONS. The Purchaser is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization. The execution, delivery and performance of
this Agreement and all other agreements contemplated hereby to which such
Purchaser is a party have been duly authorized by the Purchaser. Each of such
agreements constitutes a valid and binding obligation of the Purchaser,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, liquidation, moratorium, receivership, conservatorship,
readjustment of debts, fraudulent conveyance or similar laws affecting the
enforcement of creditors rights generally. The Purchaser has made or obtained
all material third party and governmental consents, approvals and filings to be
made or obtained prior to the Closing by the Purchaser in connection with the
consummation of the transactions hereunder. The execution and delivery by the
Purchaser of the Agreement and the fulfillment of and compliance with the
respective terms thereof by the Purchaser do not and shall not (a) conflict with
or result in a breach of the terms, conditions or provisions of, (b) constitute
a default under or (c) result in a violation of the organizational documents of
the Purchaser or any material agreement or instrument to which Purchaser is
subject.
6. INDEMNIFICATION.
6.1 INDEMNIFICATION BY THE COMPANY. In addition to all other sums due
hereunder or provided for in this Agreement and any other rights and remedies
available to Purchaser under applicable law, the Company agrees to hold harmless
and indemnify the Purchaser and all directors, officers and controlling persons
of the Purchaser (within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) (individually referred to as an "Indemnified Person") from and against
any losses, claims, damages, costs and expenses, and liabilities (including
attorneys' fees and expenses of investigation) incurred by each Indemnified
Person pursuant to any action, suit, proceeding or investigation against any one
or more of the Company and such Indemnified Person, and arising out of or in
connection with a breach by the Company of any agreement, representation,
warranty, covenant or obligation contained in this Agreement and any and all
costs and expenses incurred by any Indemnified Person in connection with the
enforcement of its rights under this Agreement and the other agreements
contemplated hereby. The Company further agrees, promptly upon demand by an
Indemnified Person, from time to time, to reimburse each Indemnified Person for,
or pay, any loss, claim, damage, liability or expense as to which the Company
has indemnified the Indemnified Person pursuant to this Agreement.
6.2 INDEMNIFICATION BY THE PURCHASER. In addition to all other sums due
hereunder or provided for in this Agreement, the Purchaser agrees to hold
harmless and indemnify the Company and all directors, officers and controlling
persons of the Company (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) (individually referred to as an "Indemnified
Person") from and against any losses, claims, damages, costs and expenses and
liabilities (including attorneys' fees and expenses of investigation) incurred
by each Indemnified Person pursuant to any action, suit, proceeding or
investigation against any one or more of the
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Purchaser and such Indemnified Person, and arising out of or in connection with
a breach by the Purchaser of any agreement, representation, warranty, covenant
or obligation contained in this Agreement and any and all costs and expenses
incurred by any Indemnified Person in connection with the enforcement of its
rights under this Agreement. The Purchaser further agrees, promptly upon demand
by an Indemnified Person, from time to time, to reimburse each Indemnified
Person for, or pay, any loss, claim, damage, liability or expense as to which
the Purchaser has indemnified the Indemnified Person pursuant to this Agreement.
6.3 PROCEDURE. Each Indemnified Person agrees to give prompt written
notice to the indemnifying party after the receipt by the Indemnified Person of
any written notice of the commencement of any action, suit, proceeding or
investigation or threat thereof made in writing for which such Indemnified
Person will claim indemnification or contribution pursuant to this Agreement,
PROVIDED that the failure of any Indemnified Person to give notice shall not
relieve the indemnifying party of its obligations except to the extent that the
indemnifying party is actually prejudiced by the failure to give notice. If any
such action is brought against an indemnified party, the indemnifying party will
be entitled to participate in and to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party for any legal or other expenses incurred by the latter in connection with
the defense thereof unless (i) in the reasonable opinion of counsel for the
indemnifying party a conflict of interest exists between the indemnified party
and indemnifying party, (ii) the indemnified party reasonably objects to such
assumption on the basis that there may be defenses available to it which are
different from or in addition to the defenses available to the indemnifying
party, (iii) the indemnifying party has failed to timely assume the defense of
any such action or proceeding or (iv) the indemnifying party and its counsel do
not actively and vigorously pursue the defense of such action . Whether or not
such defense is assumed by the indemnifying party, the indemnifying party will
not be subject to any liability for any settlement made without its consent. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying party who
elects not to assume the defense of an action or where a potential conflict of
interest or other defenses may able available, shall not be obligated to pay the
fees and expenses of more than one counsel and local counsel where appropriate
for all parties indemnified by such indemnifying party with respect to such
action, unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such action. Cost and expenses incurred by
the indemnified party shall be reimbursed, from time to time, by the
indemnifying party as and when bills are received or expenses are incurred.
6.4 GROSS UP. Any payment required to be made under this Section 6
shall be increased so that the net amount retained by the Indemnified Person,
after deduction of any
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federal, state, local or foreign tax due thereon (assuming a maximum effective
total statutory tax rate), shall be equal to the amount otherwise due.
7. EXCHANGE AND REPLACEMENT OF SECURITIES. Upon surrender of any
Preferred Share certificate by the Purchaser for exchange at the office of the
Company, the Company, at its expense (exclusive of applicable transfer taxes or
other similar taxes), will issue or cause to be issued, in exchange, a new
Preferred Share certificate in such denominations as may be requested for the
same number of Preferred Shares and registered as the Purchaser may request.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of any Preferred Share certificate, upon delivery of a
written agreement of indemnity reasonably satisfactory to the Company in form or
amount, or, in the case of any such mutilation upon surrender and cancellation
thereof, the Company, at its expense, will issue or cause to be issued a new
Preferred Share certificate in replacement of such lost, stolen, destroyed or
mutilated Preferred Share certificate.
8. SURVIVAL. All agreements, representations and warranties contained
herein or made in writing by or on behalf of the Company or by or on behalf of
the Purchaser in connection with the transactions contemplated hereby shall
survive the execution and delivery of this Agreement, all investigations made by
Purchaser or on Purchaser's behalf, and the issuance and delivery of the
Preferred Shares.
9. NO BROKER. Each party hereto represents and warrants that it has
incurred no obligation or liability, contingent or otherwise, for brokerage or
finders' fees or agents' commissions or other similar payment in connection with
this Agreement.
10. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
hand delivered or sent by first class registered or certified mail (return
receipt requested), postage prepaid, to the respective addresses of the Company
and the Purchaser set forth below, unless subsequently changed by written
notice. Any notice shall be deemed to be effective when it is received.
To the Purchaser:
Westar Security, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Phone: 000-000-0000
Fax: 000-000-0000
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With a copy to:
Xxxxx X. Xxxxxxxx, Esq.
Protection One, Inc.
0000 Xxxx Xxxxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
To the Company:
Guardian International, Inc.
0000 Xxxxx 00xx Xxxxxxx
Xxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxx, President and Chief Executive
Officer
Phone: 000-000-0000
Fax: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxx, Esq.
Steel Xxxxxx & Xxxxx LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxxx, XX 00000-0000
Phone: 000-000-0000
Fax: 000-000-0000
11. COSTS AND EXPENSES. Whether or not the transactions contemplated
hereby close, each party will bear its own costs and expenses for due diligence
and for the preparation and negotiation of this Agreement. The Company agrees to
pay, or cause to be paid, all documentary and similar taxes levied under the
laws of the United States of America or any state or local taxing authority
thereof or therein in connection with the issuance and sale of the Preferred
Shares and the execution and delivery of the other documents contemplated hereby
and any modification of any of such documents and will hold the Purchaser
harmless without limitation as to time against any and all liabilities with
respect to all such taxes.
12. MUTUAL COVENANTS. Each of the Company and Purchaser agrees to
promptly use its best efforts to SECURE such consents as may be necessary to
effect the transactions contemplated hereunder.
13. PRESS RELEASES. Simultaneously with the execution of this
Agreement, the parties hereto shall issue a press release in mutually acceptable
form (the "Press Release"). The
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parties hereto agree to consult with each other prior to any press release
regarding the transactions contemplated herein.
14. ASSIGNMENT, SUCCESSORS AND NO THIRD-PARTY RIGHTS. Neither party may
assign any of its rights under this Agreement without the prior written consent
of the other party, except that the Purchaser may assign any of its rights under
this Agreement to any "affiliate" of the Purchaser as defined in Regulation D
promulgated under the Securities Act of 1933, as amended. This Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or referred
to in this Agreement will be construed to give any person other than the parties
to this Agreement any legal or equitable right, remedy or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
15. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable. In the
event any provision of this Agreement shall be held invalid, the parties agree
to enter into such further agreements as may be necessary in order to carry out
the intent and purposes of the parties herein.
16. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Florida without regard
to conflicts of law principles thereunder.
17. ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes all
prior agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the parties with
respect to its subject matter. This Agreement may be not amended except by a
written agreement executed by the party to be charged with the Amendment.
18. WAIVER. The rights and remedies of the parties to this Agreement
are cumulative and not alternative. Neither the failure nor the delay by any
party in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. To the maximum
extent permitted by applicable law, (a) no claim or right arising out of this
Agreement or the documents referred to in this Agreement can be discharged by
any party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no
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notice to or demand on one party will be deemed to be a waiver of an obligation
of such party or of the right of the party giving such notice or demand to take
further notice or demand as provided in this Agreement or the documents referred
to in this Agreement.
19. SECTION HEADINGS; COUNTERPARTS. The headings in this Agreement are
for purposes of reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement may be executed in any number of counterparts,
each of which shall be an original, but all of which together shall constitute
one instrument.
20. DISPUTE RESOLUTION. Any dispute arising from, relating to, or in
connection with the matters contained herein shall be resolved in accordance
with procedures set forth in Exhibit E hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on their behalf as of the date first written above.
GUARDIAN INTERNATIONAL, INC.
By: /S/ XXXXXXX XXXXXXXX
------------------------
Xxxxxxx Xxxxxxxx,
President and Chief Executive Officer
WESTAR SECURITY, INC.
By: /S/ XXXX X. XXXXX
------------------------
Name: XXXX X. XXXXX
Its:SECRETARY/TREASURER
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EXHIBIT A
CERTIFICATE OF DESIGNATIONS
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EXHIBIT B
OPINION OF STEEL XXXXXX & XXXXX LLP
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EXHIBIT C
OPINION OF LIONEL, XXXXXX & XXXXXXX
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EXHIBIT D
OPINION OF COUNSEL TO PURCHASER
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EXHIBIT E
DISPUTE RESOLUTION
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EXHIBIT F
WIRE INSTRUCTIONS FOR
NORTHERN TRUST BANK TRUST ACCOUNT
Northern Trust Bank of Florida
ABA# 000000000
For Credit To: Steel Xxxxxx & Xxxxx Trust Account
Account Number: 5018000075
Special Instructions: Please notify Xxxx Xxx Xxxxxx at (000) 000-0000 upon
receipt.
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