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EXHIBIT 2.3
SERIES B PREFERRED STOCK AND WARRANT
PURCHASE AGREEMENT
This Series B Preferred Stock and Warrant Purchase Agreement
(this "Agreement") is entered into this 31st day of July, 1997, by and between
Securicor Radiocoms Limited, a corporation formed under the laws of England and
Wales ("Seller"), and Transcrypt International, Inc., a Delaware corporation
("Buyer").
BACKGROUND
WHEREAS, Seller owns (i) 925,850 shares of Series I Class B
Preferred Stock, $.01 par value per share (the "Shares"), of X.X. Xxxxxxx
Company, a Minnesota corporation (the "Company"), constituting all of the issued
and outstanding shares of such Preferred Stock, and (ii) a warrant to purchase
up to an aggregate 291,790 shares of Common Stock, $.01 par value per share, of
the Company (the "Warrant"), issued pursuant to the Warrant Purchase Agreement,
dated as of March 14, 1995, among the Company, Securicor Communications Inc. and
the other parties thereto (the "Warrant Purchase Agreement");
WHEREAS, Buyer wishes to purchase and acquire the Shares and the
Warrant from Seller; and
WHEREAS, Seller wishes to sell and transfer the Shares and the
Warrant to Buyer;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants set forth below, the parties hereto hereby agree as
follows:
1. SALE AND PURCHASE OF SHARES AND WARRANT. Subject to the terms
and condi tions set forth in this Agreement, at the Closing (as defined in
Section 5.1 hereof) Seller shall (a) sell and transfer to Buyer, and Buyer shall
purchase and acquire from Seller, the Shares (together with Seller's right to
all accrued and unpaid dividends thereon) and the Warrant, and (b) assign to
Buyer all of Seller's rights in and to the Warrant Purchase Agreement.
2. CONSIDERATION. The total consideration to be paid for the
Shares (together with Seller's right to all accrued and unpaid dividends
thereon) and the Warrant pursuant hereto is a number of whole shares of the
common stock, no par value, of Buyer ("Buyer Common Stock"), equal to the
quotient obtained by dividing (x) $4.5 million by (y) the average of the per
share closing prices for Buyer Common Stock on NASDAQ for the five consecutive
trading days at least one trading day immediately preceding the day of the
Closing, provided that any fractional shares of Buyer Common Stock resulting
from such division shall be rounded up to the nearest share, which
consideration, subject to the terms and conditions of this Agreement, shall be
payable by Buyer to Seller at the Closing as set forth in Section 5 hereof.
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3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents
and warrants to Buyer as follows:
3.1. TITLE. Seller is the sole record and beneficial holder of
all the Shares and the Warrant free and clear of any and all liens, claims or
encumbrances of any nature whatsoever (whether absolute, accrued, contingent or
otherwise).
3.2. CORPORATE ORGANIZATION OF SELLER. Seller is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has the requisite corporate power and
authority to own, lease or otherwise hold the assets owned, leased and held by
it and to carry on the business currently conducted by it.
3.3 AUTHORIZATION AND EFFECT OF AGREEMENT. Seller has the
requisite corporate power and authority to execute and deliver this Agreement
and to perform the transactions contemplated hereby to be performed by Seller.
The execution and delivery by Seller of this Agreement and the performance by
Seller of the transactions contemplated hereby to be performed by Seller have
been duly authorized by all necessary corporate action on the part of Seller.
This Agreement has been duly executed and delivered by Seller and, assuming the
due execution and delivery of this Agreement by Buyer, constitutes a valid and
binding obligation of Seller, enforceable in accordance with its terms.
3.4 ABSENCE OF CONFLICTS. The execution and delivery of this
Agreement by Seller does not, and the performance by Seller of the transactions
contemplated hereby to be performed by Seller will not, conflict with, or result
in any violation of, or constitute a default (with or without notice or lapse of
time, or both) under, (i) any provision of the organizational documents of
Seller or any contract to which Seller is a party, or (ii) (A) any license,
permit or approval ("Permit") of any domestic or foreign court, government,
governmental agency, authority or instrumentality ("Governmental Authority") or
(B) any domestic or foreign statute, law, ordinance, rule, regulation, order or
common law obligation ("Law") of any Governmental Authority, issued or
applicable to Seller, or to any of its properties or assets. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority is required to be obtained or made by or with
respect to Seller in connection with the execution and delivery of this
Agreement by Seller or the performance by Seller of the transactions
contemplated hereby to be performed by it.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller as follows:
4.1 CORPORATE ORGANIZATION. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite corporate power and authority to own, lease or
otherwise hold the assets owned, leased or held by it and to carry on the
business currently conducted by it.
4.2 AUTHORIZATION AND EFFECT OF AGREEMENT. Buyer has the
requisite corporate power and authority to execute and deliver this Agreement
and to perform the transactions contemplated hereby to be performed by it. The
execution and delivery by Buyer of this Agreement and the performance by it of
the transactions contemplated hereby to be performed by it have been
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duly authorized by all necessary corporate action on the part of Buyer. This
Agreement has been duly executed and delivered by Buyer and, assuming the due
execution and delivery of this Agreement by Seller, constitutes a valid and
binding obligation of Buyer, enforceable in accordance with its terms.
4.3 ABSENCE OF CONFLICTS. The execution and delivery of this
Agreement by Buyer does not, and the performance by Buyer of the transactions
contemplated hereby to be performed by it will not, conflict with, or result in
any violation of, or constitute a default (with or without notice or lapse of
time, or both) under, (i) any provision of the Articles of Incorporation or
Bylaws of Buyer or any contract to which Buyer is a party, or (ii) (A) any
Permit of any Governmental Authority or (B) any Law of any Governmental
Authority, issued or applicable to Buyer, or to any of its properties or assets.
No consent, approval, order or authorization of, or registration, declaration or
filing with, any Governmental Authority is required to be obtained or made by or
with respect to Buyer in connection with the execution and delivery of this
Agreement by Buyer or the performance by Buyer of the transactions contemplated
hereby to be performed by it.
4.4 OTHER TRANSACTIONS. Buyer has provided to Seller true,
correct and complete copies of all agreements, instruments and documents between
Buyer or any of its Affiliates and (i) the Company or any of its Affiliates,
including the Stock Purchase Agreement (the "Stock Purchase Agreement"), dated
July 31, 1997, between Buyer and EFJ Partners (collectively, the "Company
Agreements") or (ii) NorAm Energy Corp. ("NorAm"), including the Preferred Stock
Purchase Agreement, dated July 31, 1997, between NorAm and Buyer (collectively,
the "NorAm Agreements"). Buyer represents that there are no agreements,
arrangements or understandings of any nature whatsoever between Buyer or any of
its Affiliates and EFJ Partners or any of its Affiliates pursuant to which EFJ
Partners or any of its Affiliates may receive, directly or indirectly, any
compensation or consideration, now or in the future, in connection with or
following the Closing under the Company Agreements, except as expressly provided
in the Company Agreements. Buyer covenants and agrees that NorAm will receive no
more than $5.5 million in Buyer Common Stock as total consideration for the
80,000 shares of Preferred Stock of the Company, and that the transactions
contemplated by the NorAm Agreements will not be effected on terms more
favorable to NorAm than are set forth in the NorAm Agreements. As used in this
Agreement, the term "Affiliate" means, with respect to any person, any person in
control of, controlled by, or under common control with, such person, and the
term "person" means any individual, corporation, partnership, limited liability
company, trust or other legal entity.
5. CLOSING.
5.1 DATE OF CLOSING. (a) The closing of the transactions
contemplated hereby (the "Closing") shall take place simultaneously with and at
the same location as the closing under the Stock Purchase Agreement, subject to
the fulfillment or waiver of the conditions precedent set forth in Sections 6
and 7 hereof, or at such other time and place as the parties hereto may mutually
agree. The date on which the Closing occurs is hereinafter referred to as the
"Closing Date." The following transactions shall take place at the Closing, all
of which shall be deemed to have occurred simultaneously and none of which shall
be deemed completed unless and until all of them shall have been completed (or
waived in writing by the parties entitled to performance):
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(b) At the Closing, Seller shall deliver to Buyer the
following:
(i) one or more stock certificates representing the
Shares and the Warrant, duly endorsed for transfer to Buyer or accompanied by
stock powers executed in blank;
(ii) the General Release in the form appended hereto as
Exhibit 5.1(b)(ii); and
(iii) certificates of an authorized officer of Seller,
in form and substance reasonably satisfactory to Buyer, certifying the
incumbency of officers or others acting in a representative capacity,
resolutions with respect to the due authorization of the transactions
contemplated hereby, and the matters referred to in Section 6.1 hereof;
(c) At the Closing, Buyer shall deliver to Seller the
following:
(i) the number of whole shares of Buyer Common Stock
which Seller has the right to receive pursuant to Section 2;
(ii) the General Release in the form appended hereto as
Exhibit 5.1(c)(ii); and
(iii) certificates of an authorized officer of Buyer, in
form and substance reasonably satisfactory to Seller, certifying Buyer's
Articles of Incorporation and By-laws, Buyer's valid existence and good standing
in the state of its incorporation, the incumbency of officers or others acting
in a representative capacity, resolutions with respect to the due authorization
of the transactions contemplated hereby, and the matters referred to in Section
7.1 hereof.
6. CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer
to consummate the transactions contemplated by this Agreement are subject to the
following conditions, except to the extent waived by Buyer in writing at the
Closing:
6.1 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS.
All representations and warranties of Seller contained in this Agreement shall
be accurate in all material respects as of the Closing Date with the same effect
as if made on and as of such date, except to the extent that any of such
representations and warranties refers specifically to a date other than the
Closing Date, in which case such representations and warranties shall be true
and correct in all material respects on and as of such date. As of the Closing,
Seller shall have performed and complied in all material respects with all
covenants and agreements and satisfied all conditions required to be performed
and complied with by it at or before such time.
6.2 SELLER'S DELIVERIES. Seller shall have delivered to Buyer the
documents set forth in Section 5.1(b) hereof.
6.3 CLOSING WITH BUYER. Buyer shall have completed the purchase
and acquisition of all of the issued and outstanding shares of Common Stock of
the Company (the
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"Company Common Stock") from EFJ Partners pursuant to the terms of the Stock
Purchase Agreement.
6.4 OTHER CLOSING DOCUMENTS. Seller shall have delivered to
Buyer, at or prior to the Closing, such other documents as Buyer may reasonably
request to carry out the provisions of and the transactions contemplated by this
Agreement in form and substance reasonably satisfactory to Buyer.
7. CONDITIONS TO THE OBLIGATIONS OF SELLER. The obligations of
Seller to consummate the transactions contemplated by this Agreement are subject
to the following conditions, except to the extent waived by Seller in writing at
the Closing:
7.1 ACCURACY OF REPRESENTATIONS AND COMPLIANCE WITH CONDITIONS.
All representations and warranties of Buyer contained in this Agreement shall be
accurate in all material respects as of the Closing Date with the same effect as
if made on and as of such date except to the extent that any of such
representations and warranties refers specifically to a date other than the
Closing Date, in which case such representations and warranties shall be true
and correct in all material respects on and as of such date. As of the Closing,
Buyer shall have performed and complied in all material respects with all
covenants and agreements and satisfied all conditions required to be performed
and complied with by Buyer at or before such time.
7.2 BUYER'S DELIVERIES. Buyer shall have delivered to Seller the
Buyer Common Stock and documents set forth in Section 5.1(c) hereto.
7.3 CLOSINGS WITH EFJ PARTNERS AND NORAM. Buyer shall have
simultaneously (with the Closing) completed the purchase and acquisition of the
Company Common Stock pursuant to and in accordance with the terms of the Stock
Purchase Agreement and the other Company Agreements and NorAm shall have
simultaneously (with the Closing) completed the transactions contemplated by the
NorAm Agreements in accordance with the terms thereof.
7.4 BUYER MANUFACTURING AGREEMENT. Buyer and Seller shall have
entered into a Manufacturing Agreement, substantially in the form of Exhibit A
attached hereto and incorporated herein by reference, whereby Buyer, at the
option of Seller, will manufacture up to 50,000 radios utilizing linear
modulation technology during 1998 and 1999.
7.5 LMT AGREEMENTS. The Amended and Restated Nonexclusive
Manufacturing License Agreement dated July 14, 1994 and amended on March 14,
1995 (the "Manufacturing License Agreement") by and between the Company and
Linear Modulation Technology Limited ("LMT") and the Nonexclusive Technology
Transfer License Agreement dated March 14, 1995 by and between the Company and
LMT shall be terminated on such terms and conditions as satisfactory to Seller,
in its sole discretion.
7.6 RECEIVABLES. On or before the Closing Date, the $300,000
outstanding balance due pursuant to Article V of the Manufacturing License
Agreement shall be deemed fully settled.
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7.7 OTHER CLOSING DOCUMENTS. Buyer shall have delivered to
Seller, at or prior to the Closing, such other documents as Seller may
reasonably request to carry out the provisions of and the transactions
contemplated by this Agreement in form and substance reasonably satisfactory to
Seller.
7.8 REGISTRATION RIGHTS AGREEMENT. Seller and Buyer shall have
entered into a registration rights agreement with respect to the shares of Buyer
Common Stock to be received by Seller pursuant hereto in form and substance
reasonably satisfactory to Seller and Buyer.
8. FURTHER AGREEMENTS OF THE PARTIES.
8.1 GENERAL.
(a) Seller will use all reasonable efforts and take all
reasonable steps, and will cooperate with Buyer to cause to be fulfilled, those
of the conditions set forth in this Agreement to the parties' respective
obligations to consummate the transactions contemplated by this Agreement that
are dependent upon the actions or inactions of Seller, and will execute and
deliver such instruments and take such other reasonable actions as may be
necessary or appropriate in order to carry out the intent of this Agreement and
consummate the transactions contemplated hereby.
(b) Buyer will use all reasonable efforts and take all
reasonable steps, and will cooperate with the Seller to cause to be fulfilled,
those of the conditions set forth in this Agreement to the parties' respective
obligations to consummate the transactions contemplated by this Agreement that
are dependent upon the actions or inactions of Buyer, and will execute and
deliver such instruments and take such other reasonable actions as may be
necessary or appropriate in order to carry out the intent of this Agreement and
consummate the transactions contemplated hereby.
8.2 EXPENSES. Except as otherwise provided in this Agreement,
Buyer and Seller shall bear their own respective expenses incurred by them in
respect of the transactions contemplated hereby.
8.3 FURTHER ASSURANCES. At any time and from time to time after
the date hereof, each party hereto shall, without further consideration, execute
and deliver to the other such instruments of transfer and assumption, and shall
take such other action, as the other may reasonably request to carry out the
transactions contemplated by this Agreement.
9. SURVIVAL OF REPRESENTATIONS; INDEMNITIES.
9.1 SURVIVAL; REMEDIES. The representations and warranties of
Seller and of Buyer contained in this Agreement shall survive the consummation
of the transactions contemplated hereby for the longest period of time permitted
by the applicable statute(s) of limitations.
9.2 INDEMNIFICATION BY SELLER. Seller shall indemnify and hold
harmless Buyer and its Affiliates and the successors, assigns, officers,
directors, employees, partners and agents of any of them (the "Buyer Indemnified
Parties"), promptly upon demand at any time and from time to time, from and
against any and all actions, proceedings, demands and claims asserted against
any
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Buyer Indemnified Party, and shall reimburse Buyer Indemnified Parties for any
and all losses, liabilities (of every kind or nature, whether accrued, absolute,
contingent or otherwise and whether asserted or unasserted, known or unknown and
whether due or to become due), damages, charges, liens, deficiencies or expenses
of any nature, including, without limitation, reasonable attorneys' fees and
expenses (all of which shall be recoverable hereunder, net of any tax benefit to
any Buyer Indemnified Party) (collectively, "Damages") incurred by or assessed
against any Buyer Indemnified Party, and arising out of or resulting from:
(i) the inaccuracy of any representation or warranty
made by Seller pursuant to this Agreement; or
(ii) the failure by Seller to perform or observe any
term or provision of this Agreement or of any other document or instrument
delivered in connection herewith.
9.3 INDEMNIFICATION BY BUYER. Buyer shall indemnify and hold
harmless Seller and its Affiliates and the successors, assigns, stockholders,
officers, directors, employees, partners and agents of any of them ("Seller
Indemnified Parties"), promptly upon demand at any time and from time to time,
from and against any and all actions, proceedings, demands and claims asserted
against any Seller Indemnified Party, and shall reimburse the Seller Indemnified
Parties for any and all Damages incurred by or assessed against any Seller
Indemnified Party, and arising out of or resulting from:
(a) the inaccuracy of any representation or warranty
made by Buyer pursuant to this Agreement; or
(b) the failure by Buyer to perform or observe any
term or provision of this Agreement or of any other document or instrument
delivered in connection herewith.
9.4 NOTICE OF CLAIM. If any legal proceedings, claims or demands
are instituted or asserted in respect of which any of the Buyer Indemnified
Parties or the Seller Indemnified Parties may seek indemnification from a party
hereto pursuant to the provisions hereof (such legal proceedings, claims or
demands being referred to individually as a "Claim" and collectively as the
"Claims"), the indemnified party (after receipt by it of written notice of the
commencement or assertion of such Claim) shall promptly cause a written notice
of such Claim to be made to the indemnifying party (but the failure to give such
notice shall not relieve the indemnifying party of its indemnification
obligation hereunder, except to the extent of losses actually caused by such
failure).
9.5 ELECTION TO DEFEND CLAIM. Subject to the next sentence, and
Section 9.6 hereof, the indemnifying party shall have the right, at its option
and expense, to assume the defense, settlement or other disposition
(collectively "Defense") of any Claim, provided that within ten (10) days of
receiving the notice with respect to such Claim pursuant to Section 9.4 hereof
(or within such shorter period of time as an answer or other responsive motion
may be required), the indemnifying party, by notice delivered to the indemnified
party, elects to assume such Defense. Notwithstanding the foregoing, the
indemnifying party shall not have the right to assume the Defense of any Claim
if the indemnified party determines in good faith that there is a significant
possibility that such Claim may materially and adversely affect it or its
Affiliates other than as a result of monetary damages.
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9.6 PROCEDURE FOR DEFENSE BY INDEMNIFYING PARTY. If the
indemnifying party has assumed the Defense of a Claim in accordance with Section
9.5 hereof, then the following shall apply:
(a) the indemnified party shall have the right to
participate and assist in the Defense of such Claim and to employ its own
counsel in connection therewith;
(b) the indemnifying party shall not be liable to the
indemnified party for the fees or expenses of the indemnified party's counsel or
other expenses incurred by the indemnified party in connection with
participating in the Defense of such Claim, except that the indemnifying party
shall be liable for (i) any such fees and expenses incurred prior to the time
the indemnifying party assumed such Defense and (ii) the reasonable costs of
investigation and preparation incurred by the indemnified party;
(c) counsel used by the indemnifying party in connection
with the Defense of such Claim shall be reasonably satisfactory to the
indemnified party;
(d) the indemnified party shall not effect any
compromise or settlement of such Claim without the consent of the indemnifying
party; and
(e) the indemnifying party shall not effect any
compromise or settlement of such Claim without the consent of the indemnified
party if the compromise or settlement involves matters other than the payment by
the indemnifying party of money damages, in which event such consent shall not
be unreasonably withheld.
9.7 DEFENSE BY INDEMNIFIED PARTY. If the indemnifying party does
not assume the Defense of a Claim (whether because it elects not to or has no
right to), the indemnifying party shall have the right, at its sole cost and
expense, to participate in the Defense of such Claim and to employ its own
counsel in connection therewith; provided, however, the indemnified party may
not effect any compromise or settlement of such Claim without the consent of the
indemnifying party, which consent shall not be unreasonably withheld.
9.8 COOPERATION. The parties hereto shall cooperate to the
fullest extent possible in connection with any Claim in respect of which
indemnification is sought under this Agreement.
9.9 EXCLUSIVE REMEDY. Notwithstanding anything to the contrary
contained in this Agreement, the sole and exclusive remedy of Buyer, or any
other Buyer Indemnified Parties with respect to any matter under or relating to
this Agreement, including, without limitation, any breach of any representation
or warranty hereunder or pursuant hereto shall be the remedy provided for in
Sections 9.2 and 9.3 hereof.
10. TERMINATION.
10.1 BASES FOR TERMINATION. This Agreement and the transactions
contemplated hereby may be terminated at any time on or prior to the Closing
Date:
(a) by the mutual written consent of the parties hereto;
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(b) by Buyer (i) if any representation or warranty of
Seller made in this Agreement was untrue in any material respect when made or is
untrue in any material respect on the Closing Date, or (ii) if Seller shall have
defaulted in any material respect in the performance of any covenant, agreement
or obligation under this Agreement, and such default is not cured within ten
days after Seller's receipt of written notice from Buyer that such default
exists or has occurred;
(c) by Seller (i) if any representation or warranty of
Buyer made in this Agreement was untrue in any material respect when made or is
untrue in any material respect on the Closing Date; or (ii) if Buyer shall have
defaulted in any material respect in the performance of any covenant, agreement
or obligation under this Agreement, and such default is not cured within ten
days after Buyer's receipt of written notice from Seller that such default
exists or has occurred.
10.2 MANNER OF EXERCISE. In the event of the termination of this
Agreement prior to the Closing pursuant to Section 10.1, written notice thereof
shall forthwith be given to the non-terminating party, and this Agreement shall
terminate and the transactions contemplated hereunder shall be abandoned without
further action by any party hereto.
10.3 EFFECT OF TERMINATION. In the event of the termination of
this Agreement prior to the Closing pursuant to Section 10.1, all rights and
obligations of the parties hereunder shall terminate, except for the rights and
obligations of the parties under Section 8.3 hereof and the right of the
non-breaching party to seek damages from a breaching party.
11. MISCELLANEOUS.
11.1 FINDERS. Each party hereto represents and warrants that it
has not employed or utilized the services of any broker or finder in connection
with this Agreement or the transactions contemplated hereby, except for the
persons identified by Seller on Schedule 11.1(a) hereto and by Buyer on Schedule
11.1(b) hereto.
11.2 ENTIRE AGREEMENT. This Agreement (together with Exhibits
5.1(b)(ii) and 5.1(c)(ii) hereto) contains, and is intended as, a complete
statement of all of the terms of the arrangements between the parties hereto
with respect to the matters provided for herein, and supersedes any previous
agreements and understandings between the parties hereto with respect to those
matters.
11.3 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the law of the State of New York without regard to
the conflicts of laws provisions thereof.
11.4 HEADINGS. The Section headings of this Agreement are for
reference purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
11.5 NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed given when delivered
personally or mailed by registered mail, return receipt requested, to the
parties at the following addresses (or to such other address as a party may have
specified by notice given to the other party pursuant to this provision):
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If to Buyer, to it at:
Transcrypt International, Inc.
0000 XX Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxx X. Xxxxxx, Chairman
with a copy to:
Manatt, Xxxxxx & Xxxxxxxx LLP
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
If to Seller, to it at:
Securicor Radiocoms Limited
000 Xxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention:
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
11.6 SEPARABILITY. If any provision of this Agreement is invalid
or unenforceable, the balance of this Agreement shall remain in effect.
11.7 WAIVERS AND AMENDMENTS. No waiver of any provision hereof
shall be construed as a waiver of any other provision. Any waiver or amendment
of this Agreement must be in writing and signed by the party to be charged
therewith.
11.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor any right or
obligation hereunder may be assigned or transferred by Seller without Buyer's
written consent or by Buyer without Seller's written consent.
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11.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be considered one and the same instrument.
[END OF TEXT. SIGNATURE PAGE FOLLOWS.]
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This Agreement has been duly executed on the date herein above
set forth.
SECURICOR RADIOCOMS LTD.
By: /s/ Xxx Xxxxxx
------------------------------------
Authorized Officer
TRANSCRYPT INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Authorized Officer
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The undersigned, as holder of all of the issued and outstanding
common stock of X.X. Xxxxxxx Company (the "Company") hereby covenants and agrees
with Securicor Radiocoms Limited that the undersigned will not consummate the
transactions contemplated by the Company Agreements (as defined in the foregoing
Agreement) unless the closing under the foregoing Agreement occurs substantially
concurrently therewith.
EFJ PARTNERS
By: /s/ Xxxxxxx Xxxxxx
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In order to induce Buyer and Seller to enter into this
Agreement, EFJ Partners, Weksel, Davies & Co., Inc., Xxxxxxx Xxxxxx and Xxxxxx
Xxxxxx each hereby represents and warrants to Seller that, except as provided in
the Stock Purchase Agreement, there are no agreements between Buyer or any of
its Affiliates, on the one hand, and the Company, EFJ Partners, Weksel, Davies &
Co., Inc., Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx or any of their Affiliates, on the
other hand, that provide for the payment of any sum of money or other
consideration from Buyer or any of its Affiliates to the Company, EFJ Partners,
Weksel, Davies & Co., Inc., Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx or any of their
Affiliates, and there are no agreements between the Company or any of its
Affiliates, on the one hand, and EFJ Partners, Weksel, Davies & Co., Inc.,
Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx or any of their Affiliates, on the other hand,
that provide for the payment of any sum of money or any other consideration from
the Company or any of its Affiliates to EFJ Partners, Weksel, Davies & Co.,
Inc., Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx or any of their respective Affiliates.
X.X. XXXXXXX COMPANY
By: /s/ Xxxxxxx Xxxxxx
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EFJ PARTNERS
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
WEKSEL, DAVIES & CO., INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
/s/ Xxxxxxx Xxxxxx
---------------------------------------
XXXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
---------------------------------------
XXXXXX XXXXXX
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Exhibit 5.1(b)(ii)
GENERAL RELEASE
Securicor Radiocoms Limited (the "Stockholder"), on behalf of itself and any
person or entity claiming through it, including, but not limited to its
predecessors, successors and assigns, hereby releases and agrees not to xxx X.X.
Xxxxxxx Company, a Minnesota corporation ("EFJ") or any of its subsidiaries or
Affiliates (as defined below), or the officers, directors, agents, attorneys or
representatives of any of them, or the predecessors, successors or assigns of
any of them (hereinafter jointly referred to as the "Released Parties"), with
respect to any and all known or unknown claims which the Stockholder now has,
ever had, or may in the future have, against any Released Party for or related
in any way to anything occurring from the beginning of time up to and including
the date hereof. The Stockholder expressly represents and warrants that it has
not transferred or assigned any rights or causes of action of the nature
referred to in this General Release that it might have against any of the
Released Parties. As used herein, the term "Affiliate" means, with respect to
any person, any person in control of, controlled by, or under common control
with, such person, and the term "person" means any individual, corporation,
partnership, limited liability company, trust or other legal entity.
Dated: July 31, 1997
SECURICOR RADIOCOMS LIMITED
By: /s/ Xxx Xxxxxx
------------------------------------
Authorized Officer
15
16
Exhibit 5.1(c)(ii)
GENERAL RELEASE
X.X. Xxxxxxx Company , a Minnesota corporation (the "Company"), on behalf of
itself and any person or entity claiming through it, including, but not limited
to EFJ Partners, a general partnership formed under the laws of the State of New
York, Weksel, Davies & Co., Inc., Xxxxxxx Xxxxxx and Xxxxxx Xxxxxx, its
predecessors, successors and assigns, (including Transcrypt International, Inc.,
a Delaware corporation,) hereby releases and agrees not to xxx Securicor
Radiocoms Limited, a corporation formed under the laws of England and Wales
("Securicor") or any of its subsidiaries or Affiliates (as defined below), or
the officers, directors, agents, attorneys or representatives of any of them, or
the predecessors, successors or assigns of any of them (including Xx. Xxxxxx
Xxxxx, individually, in his capacity as a director of the Company or in any
other capacity) (hereinafter jointly referred to as the "Released Parties"),
with respect to any and all known or unknown claims which the Company now has,
ever had, or may in the future have, against any Released Party for or related
in any way to anything occurring from the beginning of time up to and including
the date hereof, including without limitation with respect to any payables under
agreements with Securicor and its Affiliates. The Company expressly represents
and warrants that it has not transferred or assigned any rights or causes of
action of the nature referred to in this General Release that it might have
against any of the Released Parties. As used herein, the term "Affiliate" means,
with respect to any person, any person in control of, controlled by, or under
common control with, such person, and the term "person" means any individual,
corporation, partnership, limited liability company, trust or other legal
entity.
Dated: July 31, 1997
X.X. XXXXXXX COMPANY
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Authorized Officer
EFJ PARTNERS
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
/s/ Xxxxxxx Xxxxxx WEKSEL, DAVIES & CO., INC.
----------------------------
XXXXXXX XXXXXX
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
/s/ Xxxxxx Xxxxxx
----------------------------
XXXXXX XXXXXX TRANSCRYPT INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
16
