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Exhibit 10.17
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as
of April 28, 1995 (the "Signing Date"), is among Diamond Electronics, Inc., an
Ohio corporation ("Diamond"), the shareholders of Diamond signing this
Agreement (the "Signing Shareholders"), Ultrak, Inc., a Colorado corporation
("Ultrak"), and Diamond Purchasing Corp., a Texas corporation and wholly-owned
subsidiary of Ultrak ("Newco").
W I T N E S S E T H:
Recitals. The Boards of Directors of Diamond, Ultrak, and Newco deem
it advisable and in the best interests of their respective shareholders that a
merger (the "Merger") is consummated whereby Newco is merged with and into
Diamond pursuant to a reorganization hereafter provided for. Diamond, the
Signing Shareholders, Ultrak, and Newco desire to set forth the terms and
conditions upon which they are willing to consummate the Merger. Ultrak, as
the sole shareholder of Newco, has approved the terms of the Merger and the
execution, delivery, and performance of this Agreement. The Signing
Shareholders constitute the Board of Directors of Diamond.
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions, and covenants in this Agreement, and for other consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby covenant and agree as follows:
ARTICLE I: THE MERGER
1.01. The Merger. Upon the performance of all covenants and
obligations of the parties contained herein and upon the fulfillment (or
waiver) of all conditions to the obligations of the parties contained herein,
on the Effective Date (as hereinafter defined) and pursuant to the provisions
of the Texas Business Corporation Act (the "Texas Act") and the Ohio General
Corporation Law (the "Ohio Act"), Newco will be merged with and into Diamond,
which will be the surviving corporation (the "Surviving Corporation"), in
accordance with Articles of Merger to be filed in Texas and the Certificate of
Merger to be filed in Ohio in the forms attached hereto as Exhibits 1.01(a) and
1.01(b), respectively (collectively, the "Certificates of Merger"). As used in
this Agreement, the "Effective Date" shall mean such date as agreed upon by
Diamond, Newco, and Ultrak, on which the Certificates of Merger shall be filed
in accordance with the Texas Act and the Ohio Act, and the date the Merger will
become effective in accordance with the terms of the Certificates of Merger.
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1.02. Effect on Stock. As a result of the Merger, on the Effective
Date and without any action on the part of Diamond, Ultrak, or Newco, or any
holder of any of the following securities, the following will occur:
(a) Except as provided in Sections 1.04 and 1.10 hereof,
each share of Common Stock, no par value per share, of Diamond
("Diamond Common Stock" ) issued and outstanding immediately prior to
the Effective Date will cease to be outstanding and will be converted
into the right to receive such number of fully paid and nonassessable
shares of Common Stock, no par value per share, of Ultrak (the "Ultrak
Common Stock") as is equal to the quotient of (i) 600,000 divided by
(ii) the total number of issued and outstanding shares of Diamond
Common Stock as of the Effective Date. If all shares of Diamond
Common Stock issued and outstanding on the Effective Date are
converted into shares of Ultrak Common Stock, then the maximum number
of shares of Ultrak Common Stock that will be issued under this
Subsection 1.02(a) will be 600,000.
(b) Any shares of Diamond Common Stock held in the
treasury of Diamond will be cancelled and retired and cease to exist.
No cash, securities, or other consideration will be paid or delivered
in exchange for such treasury shares, under this Agreement.
(c) Each share of Common Stock, no par value, of Newco
("Newco Common Stock") issued and outstanding immediately prior to the
Effective Date will cease to be outstanding and will be converted into
the right to receive one share of Common Stock, no par value, of the
Surviving Corporation.
1.03. Adjustments.
(a) If the average closing price of Ultrak Common Stock
as reported for the National Association of Securities Dealers Automated
Quotations System ("NASDAQ") in the Wall Street Journal, Southwest Edition, for
each of the ten (10) trading days ending on the first trading day (the "First
Adjustment Date") that is six (6) months from the Effective Date is less than
$7.00, then Ultrak shall issue an additional 50,000 shares of Ultrak Common
Stock to the shareholders of Diamond as of the Effective Date (the "Effective
Date Shareholders"), and each of the Effective Date Shareholders will receive
one share of Ultrak Common Stock for every twelve (12) shares of Ultrak Common
Stock received pursuant to Subsection 1.02(a).
(b) If the average closing price of Ultrak Common Stock
as reported for NASDAQ in the Wall Street Journal, Southwest Edition, for each
of the ten (10) trading days ending on the first trading day (the "Second
Adjustment Date") (the First Adjustment Date and the Second Adjustment Date are
sometimes collectively
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referred to herein as the "Adjustment Dates") that is twelve (12) months from
the Effective Date is less than $8.00, then Ultrak shall issue an additional
50,000 shares of Ultrak Common Stock to the Effective Date Shareholders, and
each of the Effective Date Shareholders will receive one share of Ultrak Common
Stock for every twelve (12) shares of Ultrak Common Stock received pursuant to
Subsection 1.02(a).
(c) In the event of any change in the outstanding Ultrak
Common Stock by reason of stock dividends, stock splits, share combinations,
mergers, recapitalizations, exchanges of shares or the like, between the
Signing Date and an Adjustment Date, then the type of shares subject to
issuance on such Adjustment Date and the price of the Ultrak Common Stock that
determines whether any additional shares are issued on such Adjustment Date,
shall be adjusted appropriately.
(d) The right to receive any additional shares of Ultrak
Common Stock pursuant to this Section 1.03 is a personal right of the Effective
Date Shareholders and they may not transfer or assign all or any portion of
their right to receive additional shares of Ultrak Common Stock. No person or
entity, other than the Effective Date Shareholders, shall have the right to
receive any additional shares of Ultrak Common Stock pursuant to this Section
1.03.
1.04. Diamond Common Stock Subject to Cash Out. Notwithstanding
anything to the contrary contained in this Agreement, any Shareholder (as
hereinafter defined) who would otherwise receive ten (10) or fewer shares of
Ultrak Common Stock shall receive the Diamond Price (as defined in the
following sentence) per share of Diamond Common Stock and shall not have the
right to receive shares of Ultrak Common Stock. The Diamond Price shall equal
the product of (i) the average closing price of Ultrak Common Stock as reported
for NASDAQ in the Wall Street Journal, Southwest Edition, for each of the ten
(10) trading days ending on the trading day which is five (5) days prior to the
Effective Date multiplied by the (ii) Conversion Factor.
1.05. Exchange and Cancellation of Certificates.
(a) Ultrak shall authorize Securities Transfer Corp. to serve as
exchange agent hereunder (the "Exchange Agent"). Promptly after the Effective
Date, Ultrak shall deposit or shall cause to be deposited in trust with the
Exchange Agent certificates representing the number of whole shares of Ultrak
Common Stock to which the holders of Diamond Common Stock (other than holders
of Dissenting Shares and the holders of shares subject to Section 1.04) are
entitled pursuant to this Article I, together with cash sufficient to pay for
(i) fractional shares then known to Ultrak and (ii) shares subject to Section
1.04 (such cash amounts and certificates being hereinafter referred to as the
"Exchange Fund"). The Exchange Agent shall, pursuant to irrevocable
instructions
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received from Ultrak, deliver the number of shares of Ultrak Common Stock and
pay the amounts of cash provided for in this Article I out of the Exchange
Fund. Additional amounts of cash, if any, needed from time to time by the
Exchange Agent to make payments for fractional shares and/or shares subject to
Section 1.04 shall be provided by Ultrak and shall become part of the Exchange
Fund. The Exchange Fund shall not be used for any other purpose, except as
provided in this Agreement, or as otherwise agreed to by Ultrak, Newco, and
Diamond prior to the Effective Date.
(b) As soon as practicable after the Effective Date, the Exchange
Agent shall mail and otherwise make available to each record holder (other than
holders of Dissenting Shares) who, as of the Effective Date, was a holder of an
outstanding certificate or certificates which immediately prior to the
Effective Date represented shares of Diamond Common Stock (the "Certificates"),
a form of letter of transmittal and instructions for use in effecting the
surrender of the Certificates for payment therefor and conversion thereof,
which letter of transmittal shall comply with all applicable rules of the
NASDAQ. Delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon proper delivery of the Certificates to the
Exchange Agent and the form of letter of transmittal duly executed, the holder
of such Certificate shall be entitled to receive in exchange therefor (i) one
or more certificates as requested by the holder (properly issued, executed, and
countersigned, as appropriate) representing that number of whole shares of
Ultrak Common Stock to which such holder of Diamond Common Stock shall have
become entitled pursuant to the provisions of this Article I, (ii) as to any
fractional share, a check representing the cash consideration to which such
holder shall have become entitled pursuant to Section 1.08, and the
Certificates so surrendered shall forthwith be cancelled, and (iii) as to any
shares to be cashed out pursuant to Section 1.04, a check representing the cash
consideration to which such holder shall have become entitled pursuant to
Section 1.04, and the Certificates so surrendered shall forthwith be cancelled.
No interest will be paid or accrued on the cash payable upon surrender of the
Certificates. Ultrak shall pay any transfer or other taxes required by reason
of the issuance of a certificate representing shares of Ultrak Common Stock;
provided, however that such certificate is issued in the name of the person in
whose name the Certificate surrendered in exchange therefor is registered;
provided further, however, that Ultrak shall not pay any transfer or other
taxes if the obligation to pay such tax under applicable law is solely that of
the Shareholder or if payment of any such tax by Ultrak otherwise would cause
the Merger to fail to qualify as a tax free reorganization under the Internal
Revenue Code of 1986, as amended (the "Code"). If any portion of the
consideration to be received pursuant to this Article I upon exchange of a
Certificate (whether a certificate representing shares of Ultrak Common Stock
or a check representing payment for a fractional share or for shares subject to
Section 1.04) is to be issued or paid to a person other than the person in
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whose name the Certificate surrendered in exchange therefor is registered, it
shall be a condition of such issuance and payment that the Certificate so
surrendered shall be properly endorsed or otherwise in proper form for transfer
and that the person requesting such exchange shall pay in advance any transfer
or other taxes required by reason of the issuance of a certificate representing
shares of Ultrak Common Stock or a check representing payment for a fractional
share or for shares subject to Section 1.04 to such other person, or establish
to the satisfaction of the Exchange Agent that such tax has been paid or that
no such tax is applicable. From the Effective Date until surrender in
accordance with the provisions of this Section 1.05, each Certificate (other
than Certificates representing treasury shares of Diamond, Certificates
representing Dissenting Shares, and Certificates representing shares subject to
Section 1.04) shall represent for all purposes only the right to receive the
consideration provided in this Article I. No dividends that are otherwise
payable on Ultrak Common Stock will be paid to persons entitled to receive
Ultrak Common Stock until such persons properly surrender their Certificates
and a duly executed letter of transmittal. After such surrender, there shall
be paid to the person in whose name the Ultrak Common Stock shall be issued any
dividends on such Ultrak Common Stock that shall have a record date on or after
the Effective Date and prior to such surrender. If the payment date for any
such dividend is after the date of such surrender, such payment shall be made
on such payment date. In no event shall the persons entitled to receive such
dividends be entitled to receive interest on such dividends. All payments in
respect of shares of Diamond Common Stock that are made in accordance with the
terms hereof shall be deemed to have been made in full satisfaction of all
rights pertaining to such securities.
(c) In the case of any lost, mislaid, stolen, or destroyed
Certificates, the holder thereof may be required, as a condition precedent to
the delivery to such holder of the consideration described in this Article I,
to deliver to the Exchange Agent a bond in such reasonable sum as Ultrak or the
Exchange Agent may direct as indemnity against any claim that may be made
against Ultrak or the Exchange Agent with respect to the Certificate alleged to
have been lost, mislaid, stolen, or destroyed.
(d) After the Effective Date, there shall be no transfers on the
stock transfer books of the Surviving Corporation of the shares of Diamond
Common Stock that were outstanding immediately prior to the Effective Date.
If, after the Effective Date, Certificates are presented to the Surviving
Corporation for transfer, they shall be cancelled and exchanged for the
consideration described in this Article I.
(e) Any portion of the Exchange Fund that remains unclaimed by the
Shareholders for six (6) months after the Effective Date shall be returned to
Ultrak, upon demand by Ultrak, and any holder
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of Diamond Common Stock who has not theretofore complied with this Section 1.05
shall thereafter look only to Ultrak for issuance of the number of shares of
Ultrak Common Stock and other consideration to which such holder has become
entitled pursuant to this Article I; provided, however, that neither the
Exchange Agent nor any party hereto shall be liable to a holder of shares of
Diamond Common Stock for any amount required to be paid to a public official
pursuant to any applicable abandoned property, escheat, or similar law.
1.06. S-4 Registration Statement; Proxy Statement; Blue Sky Laws.
Ultrak and Diamond acknowledge that the transactions contemplated hereby are
subject to the provisions of the Securities Act of 1933, as amended (the
"Securities Act"). Diamond, Ultrak, and their respective affiliates will (a)
cooperate in the preparation and filing of a Registration Statement on Form S-4
(the "Registration Statement" ), which will include a proxy
statement/prospectus to be delivered to Diamond's shareholders (the "Proxy
Statement") with respect to the transactions contemplated by this Agreement,
and (b) use all their reasonable efforts to have the Registration Statement
declared effective by the Securities and Exchange Commission (the "SEC") and
the Proxy Statement therein cleared by the SEC as promptly as possible.
Diamond and Ultrak will each use all their reasonable efforts to obtain and
respond to any comments of the SEC or its staff on the Registration Statement.
Each of Diamond, Ultrak, and Newco agrees to provide promptly to the other such
information concerning its business and financial statements and affairs as, in
the reasonable judgment of the other party or its counsel, may be required or
appropriate for inclusion in the Registration Statement, or in any amendments
or supplements thereto, and to cause its counsel and auditors to cooperate with
the other's counsel and auditors in the preparation of the Registration
Statement. Diamond and Ultrak agree to take all reasonable actions as may be
required to be taken by them under state blue sky or securities laws in
connection with the transactions contemplated by this Agreement. Each of the
affiliates of Diamond ("Affiliates"), as the term "affiliates" is defined
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), shall be, as the case may be, restricted by Rule 145(d) promulgated
pursuant to the Securities Act in connection with the resale of the shares of
Ultrak Common Stock acquired pursuant to the Merger. Notwithstanding anything
to the contrary contained herein, neither any Affiliate nor any Signing
Shareholder shall (i) sell shares of Ultrak Common Stock for the forty-five
(45) day period immediately prior to the First Adjustment Date and the Second
Adjustment Date and/or (ii) sell, during the twelve (12) months immediately
following the Effective Date, shares of Ultrak Common Stock constituting more
than one-third of the shares of Ultrak Common Stock received in the Merger.
1.07. Tax Consequences. It is intended that the Merger shall
constitute a reorganization within the meaning of Section
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368(a)(2)(E) of the Code, and that this Agreement shall constitute a "plan of
reorganization" for the purposes of Section 368 of the Code.
1.08. Fractional Shares. No scrip or fractional shares of Ultrak
Common Stock shall be issued in the Merger. All fractional shares of Ultrak
Common Stock to which a holder of Diamond Common Stock immediately prior to the
Effective Date would otherwise be entitled at the Effective Date shall be
aggregated. If a fractional share results from such aggregation, such
shareholder shall be entitled, after the Effective Date, the First Adjustment
Date, and the Second Adjustment Date, as the case may be, to receive from
Ultrak an amount in cash in lieu of such fractional share, based on the
Determination Price (as defined in Section 1.09). Ultrak will make available to
the Exchange Agent the cash necessary for the purpose of paying cash for
fractional shares.
1.09. Determination Price.
(i) The Determination Price on the Effective Date shall be
the closing price, as reported for NASDAQ in theWall Street Journal,
Southwest Edition, on the last trading day immediately prior to the
Effective Date;
(ii) The Determination Price on the First Adjustment Date
shall be the closing price, as reported for NASDAQ in theWall Street
Journal, Southwest Edition, on the last trading day immediately prior
to the First Adjustment Date;
(iii) The Determination Price on the Second Adjustment Date
shall be the closing price, as reported for NASDAQ in theWall Street
Journal, Southwest Edition, on the last trading day immediately prior
to the Second Adjustment Date.
1.10. Dissenting Shares. To the extent that appraisal rights are
available under the Ohio Act, shares of Diamond Common Stock that are issued
and outstanding immediately prior to the Effective Date and that have not been
voted for adoption of the Merger and with respect of which appraisal rights
have been properly demanded in accordance with the applicable provisions of the
Ohio Act ("Dissenting Shares") shall not be converted into the right to receive
the consideration provided for in this Article I at or after the Effective Date
unless and until the holder of such shares withdraws his demand for such
appraisal (in accordance with the applicable provisions of the Ohio Act) or
becomes ineligible for such appraisal. If a holder of Dissenting Shares
withdraws his demand for such appraisal (in accordance with the applicable
provisions of the Ohio Act) or becomes ineligible for such appraisal, then, as
of the Effective Date or the occurrence of such event, whichever later occurs,
such holder's Dissenting Shares shall cease to be Dissenting Shares and shall
be converted into and represent the right to receive the consideration provided
for in
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this Article I. If any holder of Diamond Common Stock shall assert the right
to be paid for the fair value of such Diamond Common Stock as described above,
Diamond shall give Ultrak notice thereof and Ultrak shall have the right to
participate in all negotiations and proceedings with respect to any such
demands. Diamond shall not, except with the prior written consent of Ultrak,
voluntarily make any payment with respect to, or settle or offer to settle, any
such demand for payment. After the Effective Date, Ultrak will cause the
Surviving Corporation to pay its statutory obligations to holders of Dissenting
Shares.
1.11. Signing Shareholders' Approval. The Signing Shareholders agree
to the terms of the Merger and agree to vote all of their shares of Diamond
Common Stock in favor of the Merger.
ARTICLE II:
REPRESENTATIONS AND WARRANTIES OF DIAMOND
Diamond represents and warrants to each of Ultrak and Newco that the
following are true and correct as of the Signing Date and will be true and
correct as of the Effective Date as if made on that date:
2.01. Organization, Qualification, and Good Standing. Diamond is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Ohio, has the corporate power and authority to own or hold
under lease its properties and assets and to carry on its business as it is now
being conducted and is duly qualified to do business and is in good standing in
each jurisdiction in which the ownership of its property or the conduct of its
business requires such qualification. A list of all jurisdictions where
Diamond is qualified as a foreign corporation is attached as Schedule 2.01.
2.02. Investments or Subsidiaries. Except as set forth on Schedule
2.02, Diamond does not own (nor has it ever owned) the capital stock of any
corporation, nor does it have (nor has it ever had) an equity, profit sharing,
participation, or other interest in any partnership, joint venture or other
entity. No such corporation, partnership, joint venture or other entity has
any liabilities and Diamond does not have any liabilities, contingent or
otherwise, relating to any such corporation, partnership, joint venture or
other entity. No representation set forth in this Agreement relating to
Diamond would be untrue if it related to any such corporation, partnership,
joint venture or other entity.
2.03. Corporate Records. Copies of the Articles of Incorporation and
all amendments thereto and the Bylaws of Diamond have been delivered to Ultrak
and Newco and such copies are true, correct, and complete. The minute books of
Diamond, copies of which have been delivered to Ultrak and Newco, contain
accurate and
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complete minutes of all meetings of and accurate and complete consents to all
actions taken without meetings by the Board of Directors (and any committee
thereof) and the shareholders of Diamond since the formation of Diamond.
2.04. Corporate Authority Relative to This Agreement; No Violation.
Diamond has the corporate power to enter into this Agreement and the
Certificates of Merger and to carry out its obligations hereunder and
thereunder. The execution and delivery of this Agreement and the Certificates
of Merger and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by Diamond's Board of Directors
and, except for the approval of the Shareholders, no other corporate
proceedings on the part of Diamond are necessary to authorize this Agreement or
the Certificates of Merger or the transactions contemplated hereby and thereby.
This Agreement has been, and the Certificates of Merger will be, duly and
validly executed and delivered by Diamond and, assuming this Agreement and the
Certificates of Merger constitute valid and binding agreements of the other
parties hereto and thereto, this Agreement and the Certificates of Merger
constitute valid and binding agreements of Diamond, enforceable against Diamond
in accordance with their terms except that (a) such enforcement may be subject
to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium,
or other similar laws now or hereafter in effect relating to creditors' rights,
(b) the remedy of specific performance and injunctive and other forms of
equitable relief are subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought,
and (c) the enforceability of indemnification and contribution provisions may
be limited by the United States federal or state securities laws or the public
policies underlying such laws. Neither the execution and delivery of this
Agreement and the Certificates of Merger nor the consummation of the
transactions contemplated hereby or thereby (including without limitation the
Merger) will: (x) violate or conflict with any provision of the Articles of
Incorporation or Bylaws of Diamond, (y) violate or conflict with, or result in
the breach or termination of, or otherwise give any other contracting party the
right to terminate, or constitute a default (or an event which, with the lapse
of time, or the giving of notice, or both, will constitute a default) under,
any contract, license, other instrument or commitment to which Diamond is a
party or by which Diamond is bound, or result in the creation of any lien,
charge or encumbrance upon the properties or assets of Diamond pursuant to the
terms of any such contract, license, instrument or commitment, or (z) violate
or conflict with any law, regulation, permit, authorization, franchise,
license, judgment, order, writ, injunction or decree of any court or
governmental body of any jurisdiction, in each case as such is related to
Diamond or its assets. Other than in connection with or in compliance with the
provisions of the Ohio Act, the Securities Act, the Exchange Act, and the
securities or blue sky laws of the various states, no
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authorization, consent, or approval of, or filing with, any governmental body
or authority is necessary for the consummation by Diamond of the transactions
contemplated herein.
2.05. Capitalization.
(a) The authorized capital stock of Diamond consist of 11,996,000
shares of Diamond Common Stock, 4,809,219 shares of which are issued and
outstanding.
(b) All outstanding shares of Diamond Common Stock are duly
authorized, validly issued, fully paid and nonassessable and have been offered,
issued, sold, and delivered by Diamond in compliance with applicable federal
and state securities laws. There are no preemptive rights in respect of the
capital stock of Diamond.
(c) Except as set forth on Schedule 2.05(c) hereto, there are no
outstanding subscriptions, options, warrants, rights, or other arrangements or
commitments, whether express or implied, obligating Diamond to issue any shares
of its capital stock or securities exchangeable for or convertible into its
capital stock.
(d) Schedule 2.05(d) is a list of all of the Shareholders, the
address of each Shareholder as shown in Diamond's books and records, and the
number of shares of Diamond Common Stock owned by each Shareholder.
2.06. Diamond Financial Statements.
(a) Diamond has previously furnished to Ultrak and Newco true and
complete copies of audited balance sheets of Diamond as of January 1, 1995 and
January 2, 1994, and the statements of income, shareholders' equity and cash
flows for the fiscal years then ended, including the notes thereto, in each
case examined by and accompanied by the report of Xxxxxx Xxxxx & Company
(collectively, the "Financial Statements") fairly presented the financial
position of Diamond as of the dates thereof and the results of operations and
changes in financial position or other information included therein for the
periods or as of the dates then ended, all in accordance with generally
accepted accounting principles consistently applied during the periods involved
(except as otherwise stated therein).
2.07. Compliance with Applicable Laws. Diamond has complied with all
judicial, governmental, and regulatory laws applicable to it or to the
operation of its business, the non-compliance with which would have a material
adverse effect on Diamond, and Diamond has received no notice of any alleged
violation of any such applicable laws.
2.08. Taxes. Except as set forth on Schedule 2.08, Diamond has duly
filed when due all income, excise, corporate, franchise,
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property, sales, payroll, withholding, and other tax returns and reports
required to be filed by it as of the date hereof by the United States of
America or any state or any political subdivision thereof and has paid or
established adequate reserves for all taxes (including penalties and interest)
which have or may become due for the tax periods covered by such returns, and
any assessments which have been received by it. All such tax returns or
reports which are income tax returns or reports fairly reflect the taxable
income generated by Diamond and the taxes of Diamond for the periods covered
thereby. Diamond is not delinquent in the payment of any tax, assessment, or
governmental charge, there is no tax deficiency or delinquency asserted against
the Diamond and there is no unpaid assessment, proposal for additional taxes,
deficiency or delinquency in the payment of any of the taxes of Diamond that
could be asserted by any taxing authority, nor of any violation of any tax law.
There are no waivers or agreements by Diamond for the extension of time for the
assessment of any tax as shown on such returns or reports with respect to
Diamond. No audit of Diamond by any governmental agency having jurisdiction
with respect to taxes imposed on Diamond or on its income, properties, sales,
franchises, or operations is pending or threatened. All monies required to be
withheld or collected by Diamond from employees or customers for income taxes,
social security and unemployment insurance taxes and sales, excise, and use
taxes, and the portion of any such taxes to be paid by Diamond to governmental
agencies, have been collected or withheld and either paid to the respective
governmental agencies or set aside for such purpose in the manner required by
applicable law and are properly reflected in the Financial Statements or on the
books and records of Diamond.
2.09. Liabilities and Obligations. The Financial Statements reflect
all material liabilities or obligations of Diamond, accrued, contingent, or
otherwise (asserted or unasserted), arising out of transactions effected or
events occurring on or prior to the Signing Date, other than liabilities and
obligations incurred in the ordinary course of business of Diamond since
January 1, 1995, which liabilities and obligations are not either individually
or in the aggregate, material to the condition (financial or otherwise),
business or operations of Diamond and as set forth on Schedule 2.09. All
reserves shown in the Financial Statements are appropriate, reasonable, and
sufficient to provide for the losses thereby contemplated. Except as set forth
in the Financial Statements, Diamond is not liable upon or with respect to, or
obligated in any other way to provide funds in respect of or to guarantee or
assume in any manner, any debt, obligation, or liability of any person,
corporation, association, partnership, joint venture, trust, or other entity,
and Diamond knows of no basis for the assertion of any other claims,
liabilities, or obligations of any nature or in any amount that would be
material to the condition (financial or otherwise), business, or operations of
Diamond.
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2.10. Employee Benefit Plans and Arrangements; ERISA.
(a) Except for the 401(k) salary savings plan and the
stock option plan described on Schedule 2.10 hereto, and except for those other
plans, agreements, policies, or understandings that are described in Diamond's
employee handbook or have been disclosed to Ultrak in writing in connection
with Ultrak's due diligence review of Diamond, Diamond does not currently
sponsor or maintain and Diamond is not otherwise a party to, nor has it been in
default under, any accrued obligations under any "employee benefit plan"
within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), (such plans being hereinafter referred to
collectively as the "ERISA Plans"), or any other pension, profit sharing, or
other retirement plan, fringe benefit plan, health, group insurance or other
welfare benefit plan, or other similar plan, agreement, policy or understanding
("Other Plans" and, together with ERISA Plans, the "Plans"), whether formal or
informal and whether legally binding or not. Diamond does not have any
commitment to create any such Plan. Since the time of sale by Xxxxx
Industries, Inc. of Columbus, Indiana ("Xxxxx Industries, Inc.") of Diamond,
Diamond is not now, nor has it been, a part of a controlled group of
corporations within the meaning of Section 414(b) of the Code or a group of
trades or businesses under common control within the meaning of Section 414(c)
of the Code.
(b) Since the time of sale by Xxxxx Industries, Inc. of
Diamond, Diamond has never sponsored, adopted, maintained or been obligated to
contribute to a single employer, multiple employer or multiemployer defined
benefit pension plan which is, or ever was, subject to the provisions of Title
IV of ERISA. Since the time of sale by Xxxxx Industries, Inc. of Diamond,
Diamond is not now, nor has it sponsored, adopted, maintained, or been
obligated to contribute to a Plan which is or ever was subject to the minimum
funding standards of Section 302 of ERISA and Section 412 of the Code. Diamond
does not have any obligation in connection with any Plan pursuant to the terms
of a collective bargaining agreement.
(c) To the best of Diamond's knowledge, no Plan
previously sponsored or maintained by Diamond, or to which Diamond has
otherwise been a party, has resulted in any material liability or obligation
for Diamond other than as reflected on the Diamond Financial Statements.
2.11. Absence of Certain Changes. Except as otherwise contemplated
by or provided for or permitted in this Agreement or as set forth on Schedule
2.11 hereto, and except for the hiring of legal counsel as authorized by
Section 11.01, since January 1, 1995, Diamond has not: (a) suffered any
material adverse change in its condition (financial or otherwise), business,
or operations; (b) contracted for or paid any single capital expenditure
in excess of $10,000 or total capital expenditures in
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excess of $30,000; (c) mortgaged, pledged, or subjected to any lien, lease,
security interest, or other charge or encumbrance any of its properties or
assets; (d) formed or acquired or disposed of any interest in any corporation,
partnership, joint venture, or other entity; (e) suffered any damage or
destruction to or loss of any assets (whether or not covered by insurance) or
lost or terminated employees or suppliers that could or does adversely affect
its condition (financial or otherwise), business, or operations; (f) except for
the disposal of inventory, machinery, vehicles, and equipment consistent with
past practices, acquired or disposed of any assets or incurred, assumed, or
guaranteed any indebtedness for borrowed money or other liabilities or
obligations to pay money other than trade payables in the ordinary course of
business; (g) forgiven, compromised, cancelled, released, permitted to lapse,
or waived any rights or claims that are material to the condition (financial or
otherwise), business or operations of Diamond; (h) entered into, terminated or
agreed to any modifications or amendments to any material agreements, leases,
or commitments; (i) paid any bonus, granted any benefit, made any payments, or
loaned any money to its shareholders, employees, or other affiliates; (j)
entered into any employment, compensation, consulting, or collective bargaining
agreement with any person or group, or modified or amended the terms of any
such existing agreement or entered into, adopted, or amended any Plan; or (k)
entered into or terminated any other commitment or transaction or experienced
any other event that is material to the condition (financial or otherwise),
business, or operations of Diamond.
2.12. Title and Related Matters. Diamond has good and marketable
title to all assets reflected in the Financial Statements as owned by Diamond
and to those other assets reflected in Diamond's books and records as being
owned (except as they have since been affected by transactions in the ordinary
course of business and consistent with past practices), and Diamond owns such
assets free and clear of all mortgages, liens, pledges, charges, or
encumbrances of any kind or character, except (a) statutory liens for property
taxes that are not yet delinquent and (b) as expressly stated in the Financial
Statements or on Diamond's books and records (except as they have since been
affected by transactions in the ordinary course of business and consistent with
past practices).
2.13. Insurance. Diamond is a beneficiary of policies of insurance,
issued by insurers of recognized responsibility, providing adequate coverage to
insure the properties and businesses thereof against such risks and in such
amounts as are prudent and customary in Diamond's industry. All of such
policies are, and will be maintained through the Effective Date, in full force
and effect. All premiums due thereon have been paid and no notice of
cancellation has been received with respect thereto.
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2.14. Patents, Trademarks, Copyrights, Etc.
(a) Except as set forth on Schedule 2.14, Diamond owns
all patents, technology, know-how, processes, trademarks, and copyrights, if
any, necessary to conduct its business, or possesses adequate licenses or other
rights, if any, therefor, without conflict with the rights of others (the
"Proprietary Rights").
(b) Diamond has the sole and exclusive right to use the
Proprietary Rights without infringing or violating the rights of any third
parties. No consent of third parties is required for the use thereof by
Diamond, and no claim has been asserted by any person to the ownership of or
right to use any Proprietary Right or challenging or questioning the validity
or effectiveness of any such license or agreement, and Diamond does not know of
any basis for any such claim. Each of the Proprietary Rights is valid and
subsisting, has not been cancelled, abandoned, or otherwise terminated and, if
applicable, has been duly issued or filed.
(c) There is no claim that, or inquiry as to whether, any
product, activity or operation of Diamond infringes upon or involves, or has
resulted in the infringement of, any Proprietary Right of any other person,
corporation or other entity; and no proceedings have been instituted, are
pending or are threatened which challenge the rights of Diamond with respect
thereto.
2.15. Consents. Diamond possesses all necessary licenses,
franchises, permits, and governmental authorizations material to the conduct of
its business, and no authorization, consent, approval, permit, or license of,
or filing with, any governmental or public body or authority, any lender or
lessor or any other person or entity is required to authorize, or is required
in connection with, the execution, delivery, and performance of this Agreement
or the agreements contemplated hereby on the part of Diamond, and the
execution, delivery, and performance of this Agreement will not with the giving
of notice, the lapse of time, or both, terminate such licenses, franchises,
permits, and governmental authorizations.
2.16. Labor Relations.
(a) Diamond is not a party to any collective bargaining
agreements with any union and no collective bargaining agreement is currently
being negotiated by Diamond.
(b) There are no unfair labor practice charges,
complaints, or proceedings against Diamond pending or threatened before the
National Labor Relations Board.
(c) Other than as set forth on Schedule 2.16(c), there
are no discrimination charges (relating to sex, age, race, national
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origin, handicap, or veteran status) pending before any federal or state agency
or authority.
(d) There is no pending representation question involving
an attempt to organize a bargaining unit including any employees of Diamond and
no labor grievance has been filed.
2.17. Litigation and Claims. Except as set forth on Schedule 2.17,
Diamond is not a party to, and the business and assets of Diamond are not the
subject of or affected by, any pending or threatened suit, claim, action or
litigation by or with any party or any administrative, arbitration, or other
governmental proceeding, investigation, or inquiry. Diamond is not (a) subject
to any continuing court or administrative order, writ, injunction or decree
applicable specifically to Diamond or to its business, assets, operations or
employees, or (b) in default with respect to any such order, writ, injunction
or decree. Diamond does not know of any basis for any such action, proceeding,
or investigation.
2.18. Employees and Consultants. Diamond has no direct or indirect,
express or implied, obligation to pay severance or termination pay to any
officer or employee of Diamond, or to pay any termination or severance payments
to any consultant, agent, or other person or entity.
2.19. Books of Account. The books of account of Diamond have been
kept accurately in the ordinary course of business, the transactions entered
therein represent bona fide transactions and the revenues, expenses, assets,
and liabilities of Diamond have been properly recorded in such books in
accordance with accepted accounting practices.
2.20. Distributions. Except as set forth on Schedule 2.20, since
January 1, 1995, no distribution, payment or dividend of any kind has been
declared, paid or distributed by Diamond on or with respect to any of its
capital stock at any time.
2.21. Corporate Name. There are no actions, suits, or proceedings
pending or threatened against or affecting Diamond which may result in any
impairment of the right of Diamond to use its corporate name. The use of the
corporate name of Diamond does not infringe the rights of any third party nor
is it confusingly similar with the corporate name of any third party. Except
as set forth on Schedule 2.21, no person or business entity other than Diamond
is authorized, directly or indirectly, to use the corporate name of Diamond, or
any name confusingly similar thereto.
2.22. Compliance with Environmental Laws. Diamond has provided
Ultrak and Newco with all environmental studies, records, and reports in
Diamond's possession or control conducted by independent contractors or Diamond
and all correspondence with any governmental entities concerning environmental
conditions of the
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Real Property, or which identify underground storage tanks, or otherwise relate
to contamination of the soil or groundwater of the Real Property. Except as
disclosed in the August Xxxx reports dated June 9, 1994, August 3, 1994, and
April 27, 1995:
(a) Diamond has not obtained and has not been required to
have obtained any permits, licenses or similar authorizations to occupy,
operate or use any buildings, improvements, fixtures or equipment forming a
part of any of the real property currently or heretofore owned or leased by
Diamond ("Real Property") by reason of any applicable federal or state
environmental laws, rules or regulations.
(b) Diamond has no knowledge that any underground storage
tanks were placed on the Real Property by any person or entity.
(c) Diamond has not placed any asbestos-containing
thermal insulation or building products or PCB-containing products on the Real
Property, and Diamond has no knowledge that any owner, prior lessee or user has
placed any asbestos-containing thermal insulation or building products or
PCB-containing products on the Real Property.
(d) Diamond has not ever been refused, nor do they have
any knowledge of any owner, prior lessee or user ever being refused, insurance
coverage, and no insurance coverage has ever been cancelled, as a result of the
presence of hazardous waste, solid waste or hazardous substances on the Real
Property.
(e) Diamond has not installed or maintained any active or
inactive hazardous waste receptacles on the Real Property, and Diamond does not
have any knowledge that any active or inactive hazardous waste receptacles have
been installed or maintained on the Real Property by any owner, prior lessee or
user.
(f) There have been no spills, discharges or other
releases of hydrocarbons or hazardous or toxic substances onto or from the Real
Property and Diamond does not have any knowledge of any spills, discharges, or
releases by any owner, prior lessee, or user of the Real Property.
(g) There are no plans or documents, whether or not
government approved, including, but not limited to, contingency plans, closure
and post-closure plans, which impose environmental obligations specifically on
Diamond or against the Real Property, and Diamond does not have any knowledge
of any such documents prepared by any owner, prior lessee, or user of the Real
Property.
(h) There are no environmental liens or security
interests against the Real Property nor are there any environmental liens or
actions pending or threatened which would result in the
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creation of any lien relating to environmental conditions of the Real Property.
2.23. Condition of Fixed Assets. Except as set forth on Schedule
2.23, all of the fixed assets owned or leased by Diamond are in good condition
and repair for the intended use in the ordinary course of business and conform
in all material respects with all applicable ordinances, regulations and other
laws and there are no known latent defects therein.
2.24. Registration Statement; Other Information. None of the
information with respect to Diamond or the Merger supplied by Diamond to be
included in the Registration Statement or any amendments thereof or supplements
thereto, at the time of effectiveness, at the time of the filing of the
Registration Statement and any amendments thereof or supplements thereto, at
the time of the meeting of Shareholders to be held in connection with the
transactions contemplated herein and on the Effective Date, will contain any
untrue statement of a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they are made, not misleading. No representation is made by Diamond with
respect to any forward looking information which may have been supplied to
Ultrak. Notwithstanding anything to the contrary herein, Xxxxxxx Xxxxxxxx
("Xxxxxxxx") will be allowed to review the Registration Statement or any
amendments thereof or supplements thereto, prior to the filing of the
Registration Statement or any amendments thereof or supplements thereto.
2.25. Brokers and Finders. Neither Diamond nor any of its officers,
directors, and employees has employed any broker, finder, or investment bank or
incurred any liability for any investment banking fees, financial advisory
fees, brokerage fees, or finders' fees in connection with the transactions
contemplated hereby.
ARTICLE III:
SPECIAL REPRESENTATIONS AND WARRANTIES
OF SIGNING SHAREHOLDERS
Each Signing Shareholder severally represents and warrants to each of
Ultrak and Newco that the following are true and correct as of the Signing Date
and true and correct as of the Effective Date as if made on that date:
3.01. Miscellaneous Representations. Such Signing Shareholder does
not have any actual knowledge of (i) any material error in the Financial
Statements, (ii) any material liability or obligation of Diamond that is not
disclosed in the Financial Statements or in a Schedule to this Agreement, (iii)
any trend, demand, commitment, event, or uncertainty that will materially
adversely impact, or that is reasonably likely to materially
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adversely impact, Diamond's liquidity, capital resources, and/or results of
operations, (iv) any pending or threatened suit, claim, action, proceeding,
investigation, or inquiry against Diamond that is reasonably likely to be
material to the condition (financial or otherwise), business, or operations of
Diamond, and/or (v) any customer or supplier material to the condition
(financial or otherwise), business, or operations of Diamond that has indicated
it will no longer purchase from or sell to Diamond. None of the Signing
Shareholders, other than Xxxxxxxx, shall have any duty independently to
investigate or verify the accuracy or adequacy of disclosures provided to
Ultrak by Diamond pursuant to the Disclosure Schedule or this Agreement;
provided, however, Xxxxxxxx' duty to investigate shall not include a duty to
investigate matters or events occurring prior to May 15, 1991, and shall not
include Schedule 2.05(d). Notwithstanding anything to the contrary herein,
Xxxxxxxx shall be the only Signing Shareholder with any responsibility under
this Section 3.01 for responsibility with respect to Section 2.22 and Xxxxxxxx'
responsibility with respect to Section 2.22 shall only be with respect to
events or occurrences after May 15, 1991. Xxxxxxxx' duty to investigate shall
only require him to conduct a reasonable inquiry, based on his actual
knowledge, of material matters or events.
3.02. Stock Ownership. As of the date hereof, such Signing
Shareholder is the lawful record and beneficial owner of the shares of Diamond
Common Stock set forth by his name on Schedule 3.02 hereto, free and clear of
all proxies, claims, voting agreements, options, and rights of first refusal of
any kind.
The representations and warranties of the Signing Shareholders will
survive for one year from the Effective Date.
ARTICLE IV:
REPRESENTATIONS AND WARRANTIES OF
ULTRAK AND NEWCO
Each of Ultrak and Newco jointly and severally represents and warrants
to Diamond that the following are true and correct as of the Signing Date and
will be true and correct as of the Effective Date as if made on that date:
4.01. Organization, Qualification, and Good Standing. Ultrak is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Colorado, and Newco is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Texas,
and each of Ultrak and Newco has the corporate power and authority to own or
hold under lease its properties and assets and to carry on its business as it
is now being conducted and is duly qualified to do business and is in good
standing in each jurisdiction in which the ownership of its
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property or the conduct of its business requires such qualification.
4.02. Corporate Records. The copies of the Articles of Incorporation
and all amendments thereto and the Bylaws of both Ultrak and Newco that have
been delivered to Diamond are true, correct, and complete copies thereof. The
minute books of Ultrak and Newco, copies of which have been delivered to
Diamond, contain accurate and complete minutes of all meetings of and accurate
and complete consents to all actions taken without meetings by the Board of
Directors (and any committee thereof) and the shareholders of Ultrak and Newco
since the formation of both Ultrak and Newco.
4.03. Capitalization of Ultrak.
(a) The authorized capital stock of Ultrak consists of 20,000,000
shares of Ultrak Common Stock and 2,000,000 shares of Preferred Stock, $5.00
par value per share, of which 195,351 shares have been designated as Series A
12% Cumulative Convertible Preferred Stock ("Series A Preferred Stock"). As of
December 31, 1994, there were issued and outstanding 6,555,619 shares of Ultrak
Common Stock and 195,351 shares of Series A Preferred Stock.
(b) All outstanding shares of Ultrak Common Stock are duly
authorized, validly issued, fully paid and nonassessable and have been offered,
issued, sold, and delivered by Ultrak in compliance with applicable federal and
state securities laws. There are no preemptive rights in respect of the
capital stock of Ultrak.
(c) All outstanding shares of capital stock of Newco are validly
issued, fully paid and nonassessable and are owned by Ultrak directly, free and
clear of all liens, claims, charges, or encumbrances.
(d) As of December 31, 1994, there were options and warrants
outstanding (the "Outstanding Options") entitling the holders thereof to
acquire 732,959 shares of Ultrak Common Stock. The Outstanding Options are set
forth in the Annual Report (as hereinafter defined).
(e) Except for the Outstanding Options, there are no outstanding
subscriptions, options, warrants, rights, or other arrangements or commitments,
whether express or implied, obligating Ultrak to issue any shares of its
capital stock or securities exchangeable for or convertible into its capital
stock. There are no outstanding subscriptions, options, warrants, rights or
other arrangements or commitments whether express or implied, obligating Newco
to issue any shares of its capital stock or securities exchangeable for or
convertible into its capital stock.
4.04. Corporate Authority Relative to This Agreement; No Violation.
Ultrak and Newco have the corporate power to enter into
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this Agreement and the Certificates of Merger and to carry out their respective
obligations hereunder and thereunder. The execution and delivery of this
Agreement and the Certificates of Merger and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized by Ultrak's and Newco's Boards of Directors and no other corporate
proceedings on the part of Ultrak or Newco are necessary to authorize this
Agreement or the Certificates of Merger or the transactions contemplated hereby
and thereby. This Agreement and the Certificates of Merger have been duly and
validly executed and delivered by Ultrak and Newco and, assuming this Agreement
and the Certificates of Merger constitute valid and binding agreements of the
other parties hereto and thereto, this Agreement and the Certificates of Merger
constitute valid and binding agreements of Ultrak and Newco, enforceable
against Ultrak in accordance with their terms except that (a) such enforcement
may be subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights, (b) the remedy of specific performance and
injunctive and other forms of equitable relief are subject to certain equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought, and (c) the enforceability of indemnification and
contribution provisions may be limited by the United States federal or state
securities laws or the public policies underlying such laws. Neither the
execution and delivery of this Agreement nor of the Certificates of Merger nor
the consummation of the transactions contemplated hereby or thereby (including
without limitation the Merger) will: (x) violate or conflict with any
provision of the Articles of Incorporation or Bylaws of Ultrak or the Articles
of Incorporation or Bylaws of Newco, (y) violate or conflict with, or result in
the breach or termination of, or otherwise give any other contracting party the
right to terminate, or constitute a default (or an event which, with the lapse
of time, or the giving of notice, or both, will constitute a default) under,
any contract, license, other instrument or commitment to which Ultrak or Newco
is a party or by which Ultrak or Newco is bound, or result in the creation of
any lien, charge or encumbrance upon the properties or assets of Ultrak or
Newco pursuant to the terms of any such contract, license, instrument or
commitment, or (z) violate or conflict with any law, regulation, permit,
authorization, franchise, license, judgment, order, writ, injunction or decree
of any court or governmental body of any jurisdiction, in each case as such is
related to Ultrak or Newco or their assets. Other than in connection with or
in compliance with the provisions of the Texas Act, the Ohio Act, the
Securities Act, the Exchange Act, and the securities or blue sky laws of the
various states, no authorization, consent, or approval of, or filing with, any
governmental body or authority is necessary for the consummation by Ultrak and
Newco of the transactions contemplated herein.
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4.05. Ultrak Reports and Financial Statements. Ultrak has
previously furnished to Diamond true and complete copies of the following (the
"SEC Filings"):
(i) Ultrak's annual report on Form 10-K filed with the
SEC for the year ended December 31, 1993;
(ii) Ultrak's quarterly reports on Form 10-Q filed with
the SEC for the quarters ended March 31, 1994, June
30, 1994, and September 30, 1994;
(iii) Ultrak's definitive proxy statement filed with the
SEC with respect to the Annual Meeting of Ultrak's
stockholders on June 3, 1994; and
(iv) Ultrak's annual report on Form 10-K filed with the
SEC for the year ended December 31, 1994 (the "Annual
Report).
The audited consolidated financial statements and unaudited consolidated
interim financial statements (collectively referred to herein as the "Ultrak
Financials") included in the SEC Filings (including any related notes and
schedules) fairly presented the financial position of Ultrak as of the dates
thereof and the results of operations and changes in financial position or
other information included therein for the periods or as of the dates then
ended, all in accordance with generally accepted accounting principles
consistently applied during the periods involved (except as otherwise stated
therein). Ultrak has timely filed all reports, registration statements and
other filings required to be filed with the SEC under the rules and regulations
of the SEC.
4.06. Compliance with Applicable Laws. Each of Ultrak and
Newco, to its knowledge, has complied with all judicial, governmental, and
regulatory laws applicable to it or to the operation of its business, the
non-compliance with which would have a material adverse effect on Ultrak or
Newco, as the case may be, and neither Ultrak nor Newco has received notice of
any alleged violation of any such applicable laws.
4.07. Liabilities and Obligations. The Ultrak Financials reflect
all material liabilities or obligations of Ultrak, accrued, contingent or
otherwise (asserted or unasserted), arising out of transactions effected or
events occurring on or prior to the date hereof, other than liabilities and
obligations incurred in the ordinary course of business of Ultrak since
December 31, 1994, which liabilities and obligations are not either
individually or in the aggregate, material to the condition (financial or
otherwise), business or operations of Ultrak. All reserves shown in the Ultrak
Financials are appropriate, reasonable, and sufficient to provide for the
losses thereby contemplated. Except as set forth in the Ultrak Financials,
Ultrak is not liable upon or with respect to, or
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obligated in any other way to provide funds in respect of or to guarantee or
assume in any manner, any debt, obligation or liability of any person,
corporation, association, partnership, joint venture, trust or other entity,
and Ultrak knows of no basis for the assertion of any other claims, liabilities
or obligations of any nature or in any amount that would be material to the
condition (financial or otherwise), business or operations of Ultrak.
4.08. Absence of Certain Changes. Except as otherwise contemplated
by or provided for or permitted in this Agreement or as set forth on Schedule
4.08 hereto, since December 31, 1994, Ultrak has not: (a) suffered any
material adverse change in its condition (financial or otherwise), business, or
operations; (b) contracted for or paid any single capital expenditure in excess
of $50,000 or total capital expenditures in excess of $150,000; (c) mortgaged,
pledged, or subjected to any material lien, lease, security interest, or other
charge or encumbrance any of its properties or assets; (d) formed or acquired
or disposed of any interest in any corporation, partnership, joint venture, or
other entity; (e) suffered any damage or destruction to or loss of any assets
(whether or not covered by insurance) or lost or terminated employees or
suppliers that could or does materially adversely affect its condition
(financial or otherwise), business, or operations; (f) except for the disposal
of inventory, machinery, vehicles, and equipment consistent with past
practices, acquired or disposed of any material assets or incurred, assumed, or
guaranteed any indebtedness for borrowed money or other liabilities or
obligations to pay money other than trade payables in the ordinary course of
business; (g) forgiven, compromised, cancelled, released, permitted to lapse or
waived any rights or claims that are material to the condition (financial or
otherwise), business, or operations of Ultrak; (h) entered into, terminated or
agreed to any modifications or amendments to any agreements, leases or
commitments material to the conditions (financial or otherwise), business, or
operations of Ultrak; (i) paid any bonus, granted any benefit, made any
payments or loaned any money to its shareholders, employees or other
affiliates; (j) entered into any employment, compensation, consulting, or
collective bargaining agreement with any person or group, or modified or
amended the terms of any such existing agreement or entered into, adopted, or
amended any employee benefit plan; or (k) entered into or terminated any other
commitment or transaction or experienced any other event that is material to
the condition (financial or otherwise), business or operations of Ultrak.
4.09. Title and Related Matters. Ultrak has good and marketable
title to all assets reflected in the Ultrak Financial as owned by Ultrak and to
those other assets reflected in Ultrak's books and records as being owned,
(except as they have since been affected by transactions in the ordinary course
of business and consistent with past practices), and Ultrak owns such assets
free
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and clear of all mortgages, liens, pledges, charges, or encumbrances of any
kind or character, except (a) statutory liens for property taxes that are not
yet delinquent; and (b) as expressly stated in the Ultrak Financials.
4.10. Consents. Ultrak possesses all necessary licenses,
franchises, permits, and governmental authorizations material to the conduct of
its business, and no authorization, consent, approval, permit or license of, or
filing with, any governmental or public body or authority, any lender or lessor
or any other person or entity is required to authorize, or is required in
connection with, the execution, delivery, and performance of this Agreement or
the agreements contemplated hereby on the part of Ultrak or Newco.
4.11. Registration Statement; Other Information. None of the
information with respect to Ultrak, Newco or the Merger to be included in
the Registration Statement or any amendments thereof or supplements thereto, at
the time of effectiveness, at the time of the filing of the Registration
Statement and any amendments thereof or supplements thereto, will contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Registration Statement will comply as to form in all material respects with the
provisions of the Securities Act and the Exchange Act and the rules and
regulations promulgated thereunder, except that no representation is made by
Ultrak with respect to information supplied by Diamond. No representation is
made by Ultrak with respect to any forward looking information which may have
been supplied to Diamond.
4.12. Brokers and Finders. Neither of Ultrak, Newco nor any officer
or director of Ultrak has employed any broker, finder, or investment bank or
incurred any liability for any investment banking fees, financial advisory
fees, brokerage fees, or finders' fees in connection with the transactions
contemplated hereby.
ARTICLE V: JOINT COVENANTS OF ULTRAK AND DIAMOND
5.01. Access. Each of Ultrak and Diamond will afford to one another
and to one another's officers, employees, accountants, counsel, and other
authorized representatives, full and complete access during normal business
hours, throughout the period prior to the earlier of the Effective Date or the
Termination Date (as hereinafter defined), to its and, in the case of Ultrak
also Newco's, properties, personnel, contracts, commitments, books, records
(including but not limited to tax returns) and reports, schedules or other
documents (including but not limited to reports, schedules and documents
relating to environmental matters and employee medical examinations and
condition and those filed or received by it pursuant to the requirements of the
federal or state
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securities laws) and will use all its reasonable efforts to cause its
respective representatives to furnish promptly to the other such additional
financial and operating data and other information as to its and, in the case
of Ultrak, also Newco's, respective businesses and properties as the other or
its duly authorized representatives may from time to time reasonably request.
5.02. Notice of any Material Change. Each of Ultrak and Diamond,
promptly after the first notice or occurrence thereof, but not later than the
Effective Date, shall disclose to the other in writing the occurrence of any
event or the existence of any state of facts that: (a) had such event occurred
or such facts existed or been known at the date hereof, would have been
required to have been set forth in this Agreement; (b) would make any of its
representations and warranties in this Agreement untrue in any material
respect; or (c) would otherwise constitute a material adverse change in the
business, results of operations, working capital, assets, liabilities or
condition (financial or otherwise) of Ultrak (or Newco) or Diamond, as the case
may be. No notice hereunder will have any effect for the purpose of
determining the satisfaction of or compliance with the conditions to the
obligations of the parties set forth elsewhere in this Agreement.
5.03. Cooperation. Ultrak and Diamond will: (a) cooperate
with one another in determining whether any filings are required to be made
with or consents, authorizations, clearances and approvals required to be
obtained from, any governmental or regulatory authorities in any jurisdiction
or any third party prior to the Effective Date in connection with the
consummation of the transactions contemplated in this Agreement and cooperate
in making any such filings promptly and in seeking timely to obtain any such
consents; (b) keep each other informed in connection with the transactions
contemplated by this Agreement; (c) cooperate with one another and expend
reasonable amounts in order to lift any injunctions or remove any other
impediment to the consummation of the transactions contemplated herein; and (d)
take such actions as the other party may reasonably request to consummate the
transactions contemplated by this Agreement and use all its reasonable efforts
to satisfy all conditions precedent to the obligations to close such
transactions.
5.04. Confidentiality. Each party to this Agreement will
take all reasonable precautions to maintain the confidentiality of any
information concerning any other party or any affiliate of any other party
provided to or discovered by it or its representatives and will not disclose
such information to anyone other than those people directly involved in the
investigation and negotiations pertaining to the transactions contemplated
hereby. Each party further agrees that in the event the transactions
contemplated by this Agreement are not consummated, it will return or destroy
all documents and records obtained from any other party during the course of
its investigation or negotiations pertaining to the
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transactions contemplated hereby and will use all its reasonable efforts to
cause all information with respect to such other party and its businesses which
it obtained pursuant to this Agreement to be kept confidential.
Notwithstanding the foregoing, the obligation of any party to maintain
confidentiality with respect to information received by it will not apply to
any disclosure of information required to be disclosed in the Registration
Statement or that is required to be disclosed by applicable state blue sky
statutes or other applicable law in connection with the transactions described
in the Registration Statement.
5.05. No Solicitation. Until the Termination Date, Diamond
covenants that neither it nor its officers, directors, agents, or affiliates,
will, except as required by law or by this Agreement, or by the fiduciary
duties of the Board of Directors of Diamond: (a) directly or indirectly,
encourage, solicit or initiate discussion or negotiations with any corporation,
partnership, person or other entity or group concerning any merger, sale of all
or substantially all of the assets, business combination, sale of shares of
capital stock or similar transactions involving Diamond, whether by providing
nonpublic information or otherwise; or (b) disclose, directly or indirectly,
any information not customarily disclosed to any person concerning its business
and properties, afford to any other person access to its properties, books or
records or otherwise assist or encourage any person in connection with any of
the foregoing. In the event Diamond receives any offer or inquiry for a
transaction of the type referred to in (a) above, such party will promptly
inform Ultrak and Newco as to any such offer.
5.06. Public Announcements. Other than the Press Releases
dated on or about February 10, 1995, on or about February 22, 1995, and on or
about April 21, 1995, Ultrak and Diamond will consult with each other before
issuing any press release, public announcement, or make any public filing
regarding this Agreement and the Merger, and will not, unless otherwise
required by law, issue any such press release prior to such consultation.
5.07. Issuance of Stock or Rights Below Market. Between the date
hereof and the Effective Date, Ultrak shall not, without the prior written
consent of Diamond, issue (or commit to issue) (i) warrants, options, or other
rights to acquire Ultrak Common Stock by purchase, exchange, conversion, or
otherwise (collectively, "Convertible Securities") or (ii) shares of Ultrak
Common Stock at a price per share of Ultrak Common Stock that is less than the
market price of Ultrak Common Stock on the date of issue of such Convertible
Securities or Ultrak Common Stock or the date of entering into the commitment
to issue such Convertible Securities or Ultrak Common Stock. Notwithstanding
the preceding sentence, Ultrak may issue shares of Ultrak Common Stock without
Diamond's consent upon conversion or exercise of Convertible Securities
outstanding on the date hereof and/or issue Convertible Securities
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representing the unexercised or unconverted balance of Convertible Securities
outstanding on the date hereof that are converted or exercised.
ARTICLE VI:
COVENANTS OF DIAMOND
6.01 Conduct of Business by Diamond. Prior to the Effective Date
or, if earlier, the Termination Date, and except as may be permitted, required
or contemplated pursuant to this Agreement or as specifically or as may be
consented to in writing by Ultrak, Diamond:
(a) will conduct its operations in the ordinary and usual
course of business consistent with past and current practices, and
will use all its reasonable efforts to maintain and preserve intact
its business organization and goodwill, to retain the service of its
key officers and employees, and to maintain satisfactory relationships
with customers and those having business relationships with it;
(b) will not declare or pay any dividends on its
outstanding shares of capital stock;
(c) will not propose or adopt any amendments to its
Articles of Incorporation or Bylaws;
(d) will not issue any shares of its capital stock or
effect any stock split or otherwise change its current capitalization
except pursuant to existing stock options described on Schedule
2.05(c);
(e) will not grant, confer or award any options,
warrants, conversion rights or other rights, not existing on the date
hereof, to acquire any shares of its capital stock;
(f) will not purchase or redeem any shares of its capital
stock; and/or
(g) unless otherwise required by law, will not agree to
take any action that would make any representation or warranty in
Article II hereof untrue or incorrect.
ARTICLE VII:
JOINT CONDITIONS PRECEDENT TO CLOSING OBLIGATIONS
Except as may be waived by all parties, the obligations of Ultrak,
Newco, and Diamond to consummate the transactions contemplated by this
Agreement shall be subject to the
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satisfaction, on or before the Effective Date, of each of the following
conditions:
7.01. Shareholder Approval. The stockholders of Diamond
shall have duly approved the Merger and the Certificates of Merger, in
accordance with the applicable provisions of the Texas Act or the Ohio Act, as
the case may be.
7.02. Absence of Litigation. No governmental agency or
authority shall have instituted, or threatened in writing to institute, any
action or proceeding seeking to delay, restrain, enjoin or prohibit the
consummation of the transactions contemplated by this Agreement, and no order,
judgment or decree by any court or governmental agency or authority shall be in
effect that enjoins, restrains or prohibits the same or, in the sole judgment
of Ultrak, otherwise would materially interfere with the operation of the
assets and business of Newco and Ultrak after the Merger.
7.03. Effectiveness of Registration Statement; Distribution
of Proxy Statement; No Stop Order. The Registration Statement shall have been
declared effective and the Proxy Statement contained therein will have been
distributed to the Diamond stockholders in accordance with the Ohio Act and the
rules and regulations promulgated under the Exchange Act and no stop order
shall have been issued with respect thereto.
7.04 Shares Exchanged. There will be Ultrak Common Stock
exchanged for at least ninety-five percent (95%) of the Diamond Common Stock on
the Effective Date (after giving effect to Sections 1.05, 1.09, and 1.11).
ARTICLE VIII:
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF ULTRAK AND NEWCO
The obligations of Ultrak and Newco to consummate the transactions
contemplated by this Agreement will be subject to the satisfaction on or before
the Effective Date of each of the following conditions:
8.01. Representations and Warranties; Compliance. The
representations and warranties of Diamond and the Signing Shareholders in this
Agreement shall have been true and correct in all material respects on and as
of the Signing Date and shall be true and correct in all material respects as
of the Effective Date as though made on and as of the Effective Date, and the
covenants and agreements of Diamond in this Agreement shall have been complied
with in all material respects. On the Effective Date, Diamond will provide
Ultrak with a Certificate of Compliance in the form of Exhibit 8.01-A and a
certificate of the Signing Shareholders to such effect in the form of Exhibit
8.01-B.
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28
8.02. No Material Adverse Change. There shall have been no
material adverse change in Diamond's business, properties, assets, liabilities,
results of operations or condition, financial or otherwise.
8.03. Opinion. Ultrak shall have received the opinion of
Dagger, Johnston, Miller, Xxxxxxx & Xxxxxxx, counsel for Diamond, dated as of
the Effective Date, in substantially the form attached hereto as Exhibit 8.03.
8.04. Environmental Permit Filing. Ultrak shall have
received written evidence that an application for a permit on behalf of Diamond
for wastewater and for the paintbooth shall have been properly filed with the
Ohio Environmental Protection Agency.
8.05. Employment Agreement. Xxxxxxx Xxxxxxxx shall have
executed an Employment Agreement with Ultrak in the form attached as Exhibit
8.05.
8.06. Resignations. Each of the officers and directors of Diamond
shall have tendered to Ultrak a resignation letter in form and substance
reasonably satisfactory to Ultrak; provided, however, Xxxx Xxxxxxxxx shall not
be required to resign as a director of Diamond and Xxxxxxxx shall not be
required to resign as President and as a director of Diamond.
ARTICLE IX:
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF DIAMOND
The obligations of Diamond to consummate the transactions contemplated
by this Agreement will be subject to the satisfaction on or before the
Effective Date of each of the following conditions:
9.01. Representations and Warranties; Compliance. The
representations and warranties of Ultrak in this Agreement shall have been true
and correct in all material respects on and as of the Signing Date and shall be
true and correct in all material respects as of the Effective Date as though
made on and as of the Effective Date, and the covenants and agreements of
Ultrak in this Agreement shall have been complied with in all material
respects. On the Effective Date, Ultrak will provide Diamond with a
Certificate of Compliance to such effect in a form reasonably satisfactory to
Diamond.
9.02. No Material Adverse Change. There shall have been no
material adverse change in Ultrak's assets, liabilities, results of operations
or condition, financial or otherwise.
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29
9.03. Opinion. Diamond shall have received the opinion of
Gardere & Xxxxx, L.L.P., dated as of the Effective Date, in substantially the
form attached hereto as Exhibit 9.03.
9.04. Tax Opinion. Diamond shall have received the opinion of
Leagre & Xxxxxx, dated as of the Effective Date, to the effect that, if the
Merger is consummated in accordance with the terms set forth in this Agreement,
(a) the Merger will constitute a reorganization within the meaning of Section
368(a) of the Code; (b) no gain or loss will be recognized to the holders of
shares of Diamond Common Stock upon receipt of the Merger consideration (except
for cash received in lieu of fractional shares or pursuant to the cash out of
Section 1.04); (c) the basis of the Ultrak Common Stock received by the
Shareholders will be the same as the basis of Diamond Common exchanged
therefor; and (d) the holding period of the shares of Ultrak Common Stock
received by the Shareholders will include the holding period of the shares of
Diamond Common Stock exchanged therefor, provided such shares were held as
capital assets as of the Effective Date.
9.05. Diamond Options and Warrants. To the extent rights to acquire
stock of Diamond are not exercised within two (2) business days prior to the
Effective Date, Diamond shall deliver to Ultrak evidence that such options,
warrants, or other rights to acquire stock of Diamond have been cancelled or
terminated.
ARTICLE X:
TERMINATION, WAIVER, AND AMENDMENT
10.01. Termination or Abandonment. Notwithstanding anything to the
contrary contained in this Agreement, this Agreement may be terminated and
abandoned at any time before the Effective Date, whether before or after
approval of this Agreement by the respective stockholders of Diamond:
(a) by the written consent of Ultrak and Diamond;
(b) by Ultrak or Diamond if the Effective Date has not
occurred on or before June 30, 1995, unless such failure of
consummation is due to the failure of the terminating party to perform
or observe the covenants, agreements and conditions hereof to be
performed or observed by it on or before the Effective Date; or
(c) by either Ultrak or Diamond if the conditions
precedent to its obligations to consummate its obligations
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30
under this Agreement have not been satisfied or waived by it on or
before the Effective Date.
The date on which occurs any termination pursuant to this Section 10.1 is
herein referred to as the "Termination Date."
10.02. Modification, Amendment and Waiver. No change,
modification, or amendment of this Agreement shall be valid or binding upon the
parties hereto unless such change, modification or amendment shall be in
writing and signed by all the parties hereto. No waiver of any term or
condition of this Agreement shall be enforceable unless it shall be in writing
signed by the party against which it is sought to be changed. The waiver by
any party of a breach of any provision of this Agreement by any other shall not
operate or be construed as a waiver of any subsequent breach by such other
party.
ARTICLE XI:
MISCELLANEOUS
11.01. Expenses. Each party hereto shall bear its own
expenses incurred in connection with this Agreement and the consummation of the
transactions contemplated hereby; provided, however, Diamond's legal fees and
expenses in connection with this Agreement and the transactions contemplated
hereby shall not exceed $35,000. To the extent legal fees and expenses of
Diamond exceed $35,000, then such excess shall be paid by the Signing
Shareholders.
11.02. Counterparts. This Agreement may be executed in two
or more counterparts, all of which will be considered the same agreement and
faxed copies of manually executed signature pages to this Agreement will be
fully binding and enforceable without the need for delivery of the manually
executed signature page.
11.03. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS.
11.04. Notices. All notices and other communications hereunder will
be in writing and will be deemed given if delivered by hand or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other addresses for a party as will be
specified by like notice) and will be deemed given on the date on which so
hand-delivered or on the third business day following the date on which so
mailed to the address set forth opposite the name and signature block for each
party to this Agreement.
11.05. Severability. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable, such provision shall
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31
be fully severable, and this Agreement shall be construed and enforced as if
such illegal, invalid, or unenforceable provision were never a part hereof; the
remaining provisions hereof shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance; and in lieu of such illegal, invalid, or unenforceable provision,
there shall be added automatically as part of this Agreement, a provision as
similar in its terms to such illegal, invalid, or unenforceable provision as
may be possible and be legal, valid, and enforceable.
11.06. Assignments. This Agreement shall not be assignable by
operation of law or otherwise. Any attempted assignment of this Agreement
shall be void.
11.07. Entire Agreement. This Agreement, the Schedules attached
hereto, and the Exhibits attached hereto constitute the entire agreement, and
supersede all other prior agreements and understandings, both written and oral,
between the parties, or any of them, with respect to the subject matter hereof.
All Schedules, Exhibits, and documents and agreements referred to herein or
attached hereto are fully and completely incorporated herein effective as of
the first reference herein.
11.08. Headings. The headings contained in this Agreement are for
reference purposes and will not affect in any way the meaning or interpretation
of this Agreement. Use of "herein," "hereof" or similar terms refer to this
Agreement as a whole.
[Signatures on the following page]
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32
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first above written.
ULTRAK, INC.
0000 Xxxxxxxx Xxxxxx By: /s/ XXXXXX X. XXXXXX
Suite 100 ---------------------------
Xxxxxxxxxx, Xxxxx 00000 Xxxxxx X. Xxxxxx, President
Attn: Xxxxxx X. Xxxxxx and CEO
DIAMOND ELECTRONICS, INC.
0000 Xxxxxxxx Xxxx By: /s/ XXXX X. XXXXXXXXX
Xxxxxxx, Xxxx 00000 ---------------------------
Attn: Xxxx X. Xxxxxxxxx Xxxx X. Xxxxxxxxx, Chairman
of the Board
DIAMOND PURCHASING CORP.
0000 Xxxxxxxx Xxxxxx By: /s/ XXXXXX X. XXXXXX
Suite 100 ---------------------------
Xxxxxxxxxx, Xxxxx 00000 Xxxxxx X. Xxxxxx, President
Attn: Xxxxxx X. Xxxxxx
Address for each Signing
Shareholder:
/s/ XXXXXXX X. XXXXXXXX
0000 Xxxxxxxxx Xxxxx ------------------------------
Xxxxxxxxxxxx, Xxxx 00000 XXXXXXX X. XXXXXXXX
/s/ XXXXXX X. XXXXXX
c/o Servaas, Inc. ------------------------------
0000 Xxxxxxxx Xxxxxxxxx XXXXXX X. XXXXXX
Xxxxxxxxxxxx, Xxxxxxx 00000
/s/ XXXX X. XXXXXXXXX
7491 Xxxxxx Xxxxxxxxxxx Drive ------------------------------
Xxxxxxxx, Xxxxxxx 00000 XXXX X. XXXXXXXXX
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/s/ H. XXXXXXX XXXXXXX
0000 X. Xxxxxxxx, Xxxxx 000 ----------------------------
Xxxxxxxxxxxx, Xxxxxxx 00000 H. XXXXXXX XXXXXXX
/s/ XXXXXXX XXXXXXXX, III
000 Xxxx Xxxx Xxxxx ----------------------------
Hilton Head Island, XXXXXXX XXXXXXXX, III
Xxxxx Xxxxxxxx 00000
I hereby agree to the terms of the Merger and agree to vote all of my
shares of Diamond Common Stock in favor of the Merger.
/s/ XXXXXXXX XXXXXXXXX
----------------------------
XXXXXXXX XXXXXXXXX
33
34
EXHIBIT 1.01(a)
ARTICLES OF MERGER (TEXAS)
35
CERTIFICATE AND ARTICLES OF MERGER OF
BUSINESS CORPORATIONS
Pursuant to Article 5.04 of the Texas Business Corporation Act, as
amended, the undersigned corporations hereby adopt the following Certificate
and Articles of Merger for the purpose of merging them into one of such
corporation:
1. The names of the undersigned corporations are as follows:
Name of Corporation
Diamond Electronics, Inc. ("Diamond")
Diamond Purchasing Corp. ("Newco")
2. The name of the surviving corporation after the merger shall
be Diamond Electronics, Inc., an Ohio corporation, and it shall be governed by
the laws of the State of Ohio. The registered agent of the surviving
corporation after the merger shall be _________________, and the registered
office of the surviving corporation after the merger shall be
_________________________________________________________________.
3. The Agreement and Plan of Reorganization dated as of April 28,
1995 (the "Plan"), a copy of which is attached as Exhibit A hereto, was
approved by the shareholders of Newco in the manner prescribed by the Texas
Business Corporation Act, as amended and was approved by the shareholders of
Diamond in the manner prescribed by the Ohio General Corporation Law, as
amended.
4. As to each of the undersigned corporations, the numbers of
shares outstanding and entitled to vote on the Plan are:
Corporation No. of Shares Entitled
Name Outstanding to Vote
---- ----------- ----------
Diamond 4,809,219 ______
Newco 1,000 1,000
Each of the undersigned corporations has only one class of capital stock
outstanding.
36
5. As to each of the undersigned corporations, the numbers of
shares voted for and against the Plan, respectively, are:
Corporation
Name Voted For Voted Against
---- --------- -------------
Diamond ______ ______
Newco 1,000 0
No shares of either of the undersigned corporations were entitled to vote as a
class or a series with respects to the Plan.
IN WITNESS WHEREOF, each of the undersigned corporations has caused
these Certificate and Articles of Merger to be executed by and on its behalf
and in its corporate name as of ________ ___, 1995.
DIAMOND ELECTRONICS, INC.,
an Ohio corporation
By:______________________________
Xxxx X. Xxxxxxxxx, Chairman
of the Board
DIAMOND PURCHASING CORP.,
a Texas corporation
By:______________________________
Xxxxxx X. Xxxxxx, President
37
EXHIBIT 1.01(b)
CERTIFICATE OF MERGER (OHIO)
38
Prescribed by Approved ______
Xxx Xxxx, Secretary of State Date __________
00 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx Fee ___________
Xxxxxxxx, Xxxx 00000-0000
From MER (July 1994)
CERTIFICATE OF MERGER
In accordance with the requirements of Ohio law, the undersigned
corporations, limited liability companies and/or limited partnerships, desiring
to effect a merger, set forth the following facts:
I. SURVIVING ENTITY
A. The name of the entity surviving the merger is:
_______________________________________________________________________
_______________________________________________________________________
(IF THE SURVIVING ENTITY IS AN OHIO LIMITED PARTNERSHIP OR QUALIFIED
FOREIGN LIMITED PARTNERSHIP, ITS REGISTRATION NUMBER MUST BE PROVIDED)
B. Name change: As a result of this merger, the name of the
surviving entity has been changed to the following:____________
_____________________________________________________ (COMPLETE
ONLY IF THE NAME OF SURVIVING ENTITY IS CHANGING THROUGH THE
MERGER)
C. The surviving entity is a: (Please check the appropriate box
and fill in the appropriate blanks)
[ ] Domestic (Ohio) corporation
[ ] Foreign (Non-Ohio) corporation incorporated under the laws of
the state/country of _______________________ and licensed to
transact business in the state of Ohio.
[ ] Foreign (Non-Ohio) corporation incorporated under the laws of
the state/country of _____________________, and NOT licensed
to transact business in the state of Ohio.
[ ] Domestic (Ohio) limited liability company
[ ] Foreign (Non-Ohio) limited liability company organized under
the laws of the state/country of _____________________, and
registered to do business in the state of Ohio.
[ ] Foreign (Non-Ohio) limited liability company organized under
the laws of the state/country of ___________________, and NOT
registered to do business in the state of Ohio.
[ ] Domestic (Ohio) limited partnership, registration number
_______________
39
[ ] Foreign (Non-Ohio) limited partnership organized under the
laws of the state/country of _____________________, and
registered to do business in the state of Ohio, under
registration number ______________________
[ ] Foreign (Non-Ohio) limited partnership organized under the
laws of the state/country of _______________________, and NOT
registered to do business in the state of Ohio.
II. MERGING ENTITIES
The name, type of entity, and state/country of incorporation or
organization, respectively, of each entity, other than the survivor, which is a
party to the merger are as follows: (IF INSUFFICIENT SPACE TO COVER THIS ITEM,
PLEASE ATTACH A SEPARATE SHEET LISTING THE MERGING ENTITIES; OHIO REGISTERED OR
FOREIGN QUALIFIED LIMITED PARTNERSHIPS MUST INCLUDE REGISTRATION NUMBER)
Name State/Country of Organization Type of Entity
________________________ ____________________ _________________________
________________________ ____________________ _________________________
________________________ ____________________ _________________________
________________________ ____________________ _________________________
________________________ ____________________ _________________________
III. MERGER AGREEMENT ON FILE
The name and mailing address of the person or entity from whom/which
eligible persons may obtain a copy of the agreement of merger upon written
request:
Name Address
___________________ __________________________________________
(street and number)
__________________________________________
(city, village or township) (state) (zip code)
IV. EFFECTIVE DATE OF MERGER
This merger is to be effective:
On _____________________ (if a date is specified, the date must be a
date on or after the date of filing; the effective date of the merger cannot
be earlier than the date of filing; if no date is specified, the date of filing
will be the effective date of the merger).
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V. MERGER AUTHORIZED
The laws of the state or country under which each constituent entity
exists, permits this merger.
This merger was adopted, approved and authorized by each of the
constituent entities in compliance with the laws of the state under which it is
organized, and the persons signing this certificate on behalf of each of the
constituent entities are duly authorized to do so.
VI. STATUTORY AGENT
The name and address of the surviving entity's statutory agent upon
whom any process, notice or demand may be served is:
Name Address
___________________ ________________________________________________________
(complete street address)
________________________________________________________
(city, village or township) (zip code)
(This item MUST be completed if the surviving entity is a foreign entity which
is not licensed, registered or otherwise authorized to conduct or transact
business in that State of Ohio)
Acceptance of Agent
The undersigned, named herein as the statutory agent for the above
referenced surviving entity, hereby acknowledges and accepts the appointment of
statutory agent for said entity.
______________________________________
Signature of Agent
(The acceptance of agent must be completed by domestic surviving entities if
through this merger the statutory agent for the surviving entity has changed,
or the named agent differs in any way from the name reflected on the Secretary
of State's records.)
VII. STATEMENT OF MERGER
Upon filing, or upon such later date as specified herein, the merging
entity/entities listed herein shall merge into the listed surviving entity.
VIII. AMENDMENTS
The articles of incorporation, articles of organization or certificate
of limited partnership (strike the inapplicable terms) of the surviving
domestic entity herein, are amended as set forth in the attached "Exhibit A"
(Please note that any amendments to articles of incorporation,
articles of organization or to a certificate of limited partnership MUST be
attached if the surviving entity is a DOMESTIC corporation, limited liability
company, or limited partnership.)
41
IX. QUALIFICATION OR LICENSURE OF FOREIGN SURVIVING ENTITY
A. The listed surviving foreign corporation, limited liability
company, or limited partnership desires to transact business in Ohio as a
foreign corporation, foreign limited liability company, or foreign limited
partnership, and hereby appoints the following as its statutory agent upon whom
process, notice or demand against the entity may be served in the State of
Ohio. The name and complete address of the statutory agent is:
____________________________ __________________________________
(name) (street and number)
_______________________________________, Ohio ___________________
(city, village or township) (zip code)
The subject surviving foreign corporation, limited liability company
or limited partnership irrevocably consents to service of process on the
statutory agent listed above as long as the authority of the agent continues,
and to service of process upon the Secretary of State if the agent cannot be
found, if the corporation, limited liability company or limited partnership
fails to designate another agent when required to do so, or if the
corporation's, limited liability company's, or limited partnership's license or
registration to do business in Ohio expires or is canceled.
B. The qualifying entity also states as follows: (complete only if
applicable)
1. Foreign Qualifying Limited Liability Company
(If the qualifying entity is a foreign limited
liability company, the following information must be
completed)
a. The name of the limited liability company in its
state of organization/registration is ____________
__________________________________________________
b. The name under which the limited liability
company desires to transact business in Ohio is
__________________________________________________
c. The limited liability company was organized or
registered on ________________________ under the
month day year
laws of the state/country of ____________________.
d. The address to which interested persons may
direct request for copies of the articles of
organization, operating agreement, bylaws, or
other charter documents of the company is: _______
__________________________________________________
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2. FOREIGN QUALIFYING LIMITED PARTNERSHIP
(If the qualifying entity is a foreign limited
partnership, the following information must be
completed)
a. The name of limited partnership is ___________
______________________________________________
b. The limited partnership was formed on
______________________________ under the laws
month day year
of the state/country of ______________________
c. The address of the office of the limited
partnership in its state/country of
organization is ______________________________
______________________________________________
d. The limited partnership's principal office
address is ___________________________________
______________________________________________
e. The names and business or residence addresses
of the GENERAL partners of the partnership
are as follows:
Name Address
_____________________________________________
_____________________________________________
_____________________________________________
(If insufficient space to cover this item,
please attach a separate sheet listing the
general partners and their respective
addresses)
f. The address of the office where a list of the
names and business or residence addresses of
the limited partners and their respective
capital contributions is to be maintained is:
_____________________________________________
_____________________________________________
The limited partnership hereby certifies that
it shall maintain said records until the
registration of the limited partnership in
Ohio is cancelled or withdrawn.
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The undersigned constituent entities have caused this certificate of
merger to be signed by its duly authorized officers, partners and
representatives on the date(s) stated below.
___________________________________ ___________________________________
exact name of entity exact name of entity
By:________________________________ By:________________________________
Its:_______________________________ Its:_______________________________
Date:______________________________ Date:______________________________
___________________________________ ___________________________________
exact name of entity exact name of entity
By:________________________________ By:________________________________
Its:_______________________________ Its:_______________________________
Date:______________________________ Date:______________________________
___________________________________ ___________________________________
exact name of entity exact name of entity
By:________________________________ By:________________________________
Its:_______________________________ Its:_______________________________
Date:______________________________ Date:______________________________
___________________________________ ___________________________________
exact name of entity exact name of entity
By:________________________________ By:________________________________
Its:_______________________________ Its:_______________________________
Date:______________________________ Date:______________________________
___________________________________ ___________________________________
exact name of entity exact name of entity
By:________________________________ By:________________________________
Its:_______________________________ Its:_______________________________
Date:______________________________ Date:______________________________
(Please note that the chairman of the board, the president, vice president,
secretary or an assistant secretary must sign on behalf of each constituent
corporation, and at least on general partner must sign on behalf of each
constituent limited partnership; If insufficient space for signature, a
separate sheet should be attached continuing such signatures)
44
EXHIBIT 2.1
45
EXHIBIT 8.01-A
CERTIFICATE OF COMPLIANCE OF DIAMOND
[attached]
46
EXHIBIT 8.01-A
CERTIFICATE OF COMPLIANCE
The undersigned, Diamond Electronics, Inc., an Ohio corporation
("Diamond'), hereby certifies to Ultrak, Inc., a Colorado corporation
("Ultrak"), and Diamond Electronics Corp., a Texas corporation ("Newco"), that:
1. The representation and warranties of Diamond in the Agreement
and Plan of Reorganization (the "Merger Agreement"), dated April 11, 1995 (the
"Signing Date"), by and among Diamond, Ultrak, Newco and certain shareholders
of Diamond were true and correct in all material respects on and as of the
Signing Date and are true and correct in all material respects as of the date
hereof.
2. Diamond has complied, in all material respects, with all of
the covenants and agreements required by the Merger Agreement to be performed
and complied with by Diamond.
DATED: ________________________, 1995
DIAMOND ELECTRONICS, INC.
By:_______________________________
Signature
Printed Name:_____________________
Title:____________________________
47
EXHIBIT 8.01-B
CERTIFICATE OF THE SIGNING SHAREHOLDERS
[attached]
48
EXHIBIT 8.01-B
Signing Shareholders
CERTIFICATE OF COMPLIANCE
Each of the undersigned, Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxx X.
Xxxxxxxxx ("Xxxxxxxxx"), Xxxxxx X. Xxxxxx ("Xxxxxx"), H. Xxxxxxx Xxxxxxx
("Xxxxxxx"), and Xxxxxxx Xxxxxxxx, III ("Xxxxxxxx") (Tompkins, Biddinger,
Davies, Koehler, and Xxxxxxxx are collectively referred to herein as the
"Signing Shareholders" and individually referred to as a "Signing
Shareholder"), hereby certifies to Ultrak, Inc., a Colorado corporation
("Ultrak"), and Diamond Electronics Corp., a Texas corporation ("Newco"), that:
The representation and warranties of such Signing Shareholder in the
Agreement and Plan of Reorganization (the "Merger Agreement"), dated April 11,
1995 (the "Signing Date"), by and among Diamond Electronics, Inc., an Ohio
corporation, the Signing Shareholders, Ultrak, and Newco were true and correct
as to such Signing Shareholder in all material respects on and as of the
Signing Date and are true and correct in all material respects as of the date
hereof.
DATED:________________________, 1995
_____________________________________
Xxxxxxx X. Xxxxxxxx
_____________________________________
Xxxx X. Xxxxxxxxx
_____________________________________
Xxxxxx X. Xxxxxx
_____________________________________
H. Xxxxxxx Xxxxxxx
_____________________________________
Xxxxxxx Xxxxxxxx, III
49
EXHIBIT 8.03
OPINION LETTER OF
DAGGER, JOHNSTON, MILLER, XXXXXXX & XXXXXXX
[attached]
50
DAGGER, JOHNSTON, MILLER, XXXXXXX & XXXXXXX
[LETTERHEAD]
April 11, 1995
DRAFT
Ultrak, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Gentlemen:
We have acted as special Ohio counsel for Diamond Electronics, Inc.,
an Ohio corporation ("Diamond"), in connection with the Agreement and Plan of
Reorganization, dated April 11, 1995 (the "Agreement"), among Diamond, Ultrak,
Inc., a Colorado corporation ("Ultrak"), the Signing Shareholders and Diamond
Electronics Corp., a Texas corporation ("Newco"). This opinion letter is
being delivered to you pursuant to Section 8.03 of the Agreement. Capitalized
terms used herein that are defined in the Agreement shall have the meaning set
forth therein unless otherwise defined herein.
In connection with this opinion letter, we have examined and relied
upon the Agreement, the Articles of Incorporation, By-Laws and Regulations of
Diamond, Officers' Certificates and representations of management, and such
other corporate documents and records of Diamond as we have deemed necessary.
We have assumed the genuineness of all signatures, the legal capacity of
natural persons, the authenticity of all documents submitted to us as originals
and conformity to the original documents of all documents submitted to us as
certified or photostatic copies, the authenticity of the originals of latter
documents, and the due authorization, execution and delivery of all documents
by parties other than Diamond. We have not independently verified any of the
facts contained in such documents.
This opinion deals only with the specific legal issues explicitly
addressed herein. The law covered by the opinions expressed herein is limited
to the law of the State of Ohio. We call your attention to the fact that the
Agreement and other acquisition documents by their terms are to be governed by
and
____________________
(1) Ultrak's approval of this legal opinion is subject to Dagger, Xxxxxxxx,
Xxxxxx & Xxxxxxx rendering an opinion regarding the capital stock of
Diamond Electronics, Inc.
51
Page 2
Diamond Opinion Letter
construed in accordance with the laws of the State of _____________. No
opinion is expressed as to whether a Court would give effect to such provisions
and for purposes of the opinions expressed herein, we assume that the laws of
the State of ____________ do not vary from the laws of the State of Ohio.
Based solely upon the foregoing documents, examination thereof, and
representations of management, and subject to the foregoing limitations and
qualifications, based upon our current actual knowledge we are of the opinion
that:
1. Diamond is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Ohio, and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted.
2. Diamond has all requisite corporate power and authority to
execute and deliver the Agreement, to merge with Newco in accordance with the
terms of the Agreement, and to consummate the transactions contemplated by the
Agreement. The execution and delivery of the Agreement by Diamond, the
performance by Diamond of its obligations thereunder, and the consummation of
the Merger and the other transactions described in the Agreement have been duly
and validly authorized by all necessary corporate action on the part of
Diamond.
3. The Agreement has been duly executed and delivered by Diamond
and constitutes a valid and binding obligation of Diamond, enforceable against
Diamond in accordance with its terms, except (a) as may be limited by
Bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or
similar laws affecting the enforceability of creditors' rights generally, (b)
as may be limited by general principles of equity (regardless of whether such
enforceability is considered an action at law or equity), (c) that the remedy
of specific performance and injunctive and other forms of equitable relief may
be subject to certain equitable defenses and the discretion of the Court before
which any proceeding therefore may be brought, and (d) subject to the other
Common Qualifications, as defined and set forth in the Legal Opinion Accord of
the ABA Section of Business Law (1991).
4. The execution, delivery and performance of the Agreement, the
consummation of the Merger and other transactions described in the Agreement,
and the fulfillment of and compliance of the terms and conditions of the
Agreement do not and will not, with the passing of time, or the giving of
notice or both, violate, constitute a breach of, or a default under, result in
the loss of any material benefit under, or permit the acceleration of any
52
Page 3
Diamond Opinion Letter
obligation under (a) any term or provision of the Articles of Incorporation or
By-laws or Regulations of Diamond, (b) any contract or agreement of Diamond
known to us, (c) any judgment, decree of order, known to us, of any court or
governmental authority or agency addressed to and binding on Diamond or any of
its properties, or (d) the Ohio General Corporation Law, any statute,
regulation or rule of the State of Ohio, or the United States applicable to
Diamond, except in the case of clauses (b) (c) and (d) above, for such
violations, breaches, defaults or accelerations as to do not have a material
adverse effect on the assets, liabilities, results of operations, financial
condition, business, or prospects of Diamond. Further, the opinion contained
in this paragraph is specifically not directed at any antitrust or unfair
competition laws or related statutes or regulations promulgated by the United
States.
5. Each consent, approval, order or authorization of, or
registration, declaration, or filing with, any governmental agency or public or
regulatory unit, agency, body, or authority of the State of Ohio with respect
to Diamond required to be made or obtained in connection with the execution,
delivery or performance of the Agreement by Diamond or the consummation of the
transactions described therein by Diamond has been made or obtained, except for
such consents, approvals, orders, authorizations, registrations, declarations,
or filings the failure of which to obtain or make would not have a material
adverse effect upon the assets, liabilities, results of operations, financial
condition, business or prospects of Diamond. However, this Opinion does not
address legal issues, if any, arising under Federal Securities Laws and
Regulations administered by the Securities and Exchange Commission, State "Blue
Sky" Laws and Regulations, and laws and regulations relating to commodity (and
other) futures and indices and other similar instruments; (b) pension and
employee benefit laws and regulations; (c) anti-trust and unfair competition
laws and regulations; (d) laws and regulations concerning filing and notice
requirements other than requirements applicable to charter-related documents
such as Articles of Merger; (e) compliance with fiduciary duty requirements;
(f) environmental laws and regulations; (g) land use and subdivision laws and
regulations; (h) tax laws and regulations; (i) federal patent and copyright
laws and regulations and federal and state trademark and other electoral
property laws and regulations; (j) racketeering laws and regulations; (k)
health and safety laws and regulations; (l) labor laws and regulations; (m)
laws, regulations and policies concerning national and local emergency,
possible judicial deference to acts of sovereign states, and criminal and civil
forfeiture laws; (n) other statutes of general application to the extent they
provide for criminal prosecution.
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Diamond Opinion Letter
6. Except for matters disclosed in the Agreement of the Proxy
Statements/Prospectus, we are not aware of any pending or threatened
litigation, judgment, decree, injunction, or order of any court, which is
reasonably likely (i) to have a material adverse effect on the assets,
liabilities, results of operations, financial conditions, business or prospects
of Diamond or (ii) to cause a material limitation on Ultrak's ability to
operate the business of Diamond after the Closing.
Our opinions and "negative assurance" confirmation are subject to the
following additional assumptions, exceptions and limitations:
(A) With respect to the opinion expressed in Paragraph 6 hereof,
we have not conducted any search of any indexes, dockets or other records of
any federal, state or local court, administrative agency or body of any
arbitrator or conducted any other independent investigation.
(B) As used in the opinions and "negative assurance" confirmations
expressed herein, "to the best of our knowledge," "known to us" and similar
phrases mean the actual knowledge, without independent investigation or
verification, of attorneys in our Firm who are involved in our representation
of Diamond.
(C) This Opinion may be relied upon by you only in connection with
the Agreement and Merger contemplated thereunder, and may not be used or relied
upon by you for any purpose whatsoever without in each instance our prior
written consent. We are qualified to practice law in the State of Ohio and we
do not purport to be experts on, to express any opinion concerning any law
other than the laws of the State of Ohio and relevant law of the United States
of America (with the limitations as set forth above). This Opinion Letter is
solely for the benefit of the addressee hereof in connection with the closing
of the Merger contemplated by the Agreement, and no other person or entity may
rely upon this Opinion Letter without the prior express written consent of this
firm. This Opinion letter is given as of the date hereof, and we assume no
duty to communicate with you with respect to any matter that comes to our
attention hereafter.
DAGGER, JOHNSTON, MILLER, XXXXXXX &
XXXXXXX
By: Xxxxx X. Xxxxx, Partner
54
EXHIBIT 8.05
XXXXXXX XXXXXXXX EMPLOYMENT AGREEMENT
[attached]
55
EXHIBIT 8.05
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated May ___, 1995, is between Ultrak, Inc., a
Colorado corporation ("Employer"), and Xxxxxxx X. Xxxxxxxx, an individual
resident of Ohio ("Employee").
Recitals. Employee has previously been an employee and stockholder of
Diamond Electronics, Inc., an Ohio corporation ("Diamond"), and Employer has
acquired all of the stock of Diamond. Employer desires to employ Employee as
President and Chief Executive Officer ("CEO") of ("Diamond"), and Employee
desires to be employed by Employer as President and CEO of Diamond, pursuant to
the terms hereof.
NOW, THEREFORE, in consideration of the foregoing and the agreements
and covenants set forth below, the sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby
covenant and agree as follows:
1. Employment and Duties. Employee agrees to be employed by
Employer, and Employer agrees to employ Employee, as President and CEO of
Diamond on the terms and conditions set forth in this Agreement. Employee
shall perform such duties on behalf of Employer as directed from time to time
by Employer's Board of Directors (the "Board"). Employee shall use his best
efforts to preserve the business of Employer and Diamond and the goodwill of
all employees, customers, suppliers, and other persons having business
relations with Employer and Diamond. Employee agrees during the Term (as
hereinafter defined) to devote his best efforts, skills, and abilities to the
performance of his duties as stated in this Agreement and to the furtherance of
Employer's business.
2. Compensation.
(a) Employer shall pay to Employee, subject to appropriate tax
withholding, the following:
(i) A base salary (the "Base Salary") of One Hundred
Twenty-Five Thousand and No/100 Dollars ($125,000.00) during the First Year (as
hereinafter defined) and no less than One Hundred Thirty-One Thousand Two
Hundred Fifty Dollars ($131,250.00) during the Second Year (as hereinafter
defined), payable not less often than semi- monthly in accordance with
Employer's standard payment policies. If Employer extends this Agreement for a
Third Year (as hereinafter defined) pursuant to Subsection 3(a), then the Base
Salary for the Third Year shall not be less than One Hundred Thirty-Eight
Thousand Dollars ($138,000.00).
56
(ii) A bonus in accordance with the bonus program (the "Bonus
Program") of Employer established by Employer for each of Employer's fiscal
years during the Term. The Bonus Program for 1995 (the "1995 Program") is
attached hereto as Exhibit A. For purposes of determining Employee's bonus
under the 1995 Program, the calculations of Actual Net Income shall be adjusted
to remove (i) any expenses associated with the merger whereby Employer acquired
Diamond and (ii) the revenue and profit targets to be achieved for employee to
receive a bonus and the amount of Employee's bonus, if any, will be prorated
from the Effective Date.
(b) On or about the date hereof, Employer shall grant Employee
options to acquire 5,000 shares of Employer's Common Stock, no par value per
share, pursuant to Employer's Nonqualified Stock Option Plan (the "Plan"). The
Board will annually evaluate issuing Employee additional stock options under
the Plan based on Employee's performance and the performance of Diamond.
(c) Employee shall be entitled to health insurance, life
insurance, and disability insurance benefits in accordance with Employer's
standard policies and practices, as such policies and practices shall exist
from time to time.
(d) Employee shall be entitled to participate in Employer's 401(k)
program and in Employer's Employee Stock Purchase Plan.
(e) Employee shall be entitled to four (4) weeks paid vacation and
holidays and sick leave in accordance with Employer's standard policies and
practices, as such policies and practices shall exist from time to time.
(f) Throughout the Term, Employer shall pay, or reimburse Employee
for, all travel and other expenses properly and reasonably incurred by him in
the discharge of his duties hereunder, provided that Employee's claims for
reimbursement are in accordance with Employer's expense reimbursement policy as
such policy shall exist from time to time.
(g) Employer will make available to Employee all such other
benefits as are from time to time made available to Employer's employees
generally.
3. Term and Termination.
(a) The employment of Employee pursuant to this Agreement shall
begin on the date of this Agreement and shall continue until the earliest of
(i) the date Employer terminates it for Just Cause (as hereinafter defined)
upon written notice to Employee, (ii) the death of Employee, (iii) Employee's
Permanent Disability (as hereinafter defined), or (iv) the second anniversary
of the date of this Agreement; provided, however, Employer shall have the
option to extend this Agreement for the Third Year by giving Employee written
notice at least sixty (60) days prior to the end of the Second Year. The term
"Term" shall mean the period from the date hereof through the date this
Agreement terminates or is terminated.
57
(b) If Employee's employment terminates voluntarily or is
terminated for Just Cause, then Employee shall be entitled only to the
compensation (including accrued but unpaid bonuses) earned by him as of the
date of termination, and Employee shall not be entitled to any severance or
termination pay except as may be determined in accordance with Employer's
severance or termination pay policy.
(c) The term "Just Cause" shall mean any one or more of the
following:
(i) Employee violates, directly or indirectly, any laws
or regulations (other than minor traffic violations or similar offenses),
instructs any of Employer's employees to violate such laws or regulations, or
approves of any of Employer's employees violating such laws or regulations, or
Employee commits an act of moral turpitude, and the Board, after reasonable
investigation of the facts surrounding such violation or action, reasonably
determines that such violation or action materially and adversely affects, or
could reasonably be expected to materially and adversely affect, Employer, its
business or reputation or the ability of Employee to perform his obligations
under this Agreement.
(ii) Employee diverts Employer's funds to himself or any
other person, firm, or entity.
(iii) Employee fails to comply with a specific directive of
the Board of a substantial nature.
(d) Notwithstanding anything to the contrary in this Agreement or
in any other agreement (oral or written) now or hereafter entered into between
Employer and Employee, Employee expressly understands and agrees that the
provisions of Sections 4, 5, 6, and 9, and the remedial provisions of this
Agreement, shall survive any termination of Employee's employment under this
Agreement.
(e) The term "Permanent Disability" shall mean the mental and/or
physical inability of Employee (as determined by a licensed physician
acceptable to both Employer and Employee [or Employee's guardian]) to perform
the duties normally and customarily required of Employee pursuant to this
Agreement for twelve (12) consecutive months.
(f) The term "Year" shall mean the period from [May ___] of a
calendar year through April ___ of the following calendar year. The term
"First Year" shall mean May ___, 1995 through April ___, 1996, the term "Second
Year" shall mean May ____, 1996 through April ____, 1997, and the term "Third
Year" shall, to the extent Employer extends this Agreement pursuant to
Subsection 3(a), mean May ____, 1997 through April ____, 1998.
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58
4. Nondisclosure Agreement. Employee shall not, during the Term
and for a period of two (2) years thereafter, use for his own account or for
the benefit of any other person, firm, corporation, or other entity, directly
or indirectly, any of the customer lists, customer requirements, contract
terms, trade names, trade secrets, or good will owned by Employer or Diamond
and used in the business of designing, engineering, manufacturing, selling,
leasing, and/or servicing products of a type and nature that Diamond now
produces or produces between the date hereof and the date Employee's employment
terminates (the "Business") or directly or indirectly disclose or furnish to
any other person, firm, corporation, or other entity, the methods by which the
Business is or has been conducted, any of the methods by which the customers of
Employer and/or Diamond or the Business are or have been obtained, or any
confidential or proprietary information whatsoever of Employer, including,
without limitation, the identities of or other information regarding any
customers or prospective customers of Employer and/or Diamond relating to the
Business. Notwithstanding anything to the contrary contained in this Section
4, Employee shall not be prohibited from disclosing or using any information
and methods that are publicly available for reasons other than Employee's
violation of this Agreement.
5. Noncompetition Agreement.
(a) Employee acknowledges and agrees that the proprietary
information he has acquired regarding Diamond and will acquire regarding
Diamond and Employer will enable him to injure Employer and Diamond and
diminish the value of Employee's investment in Diamond if Employee should
compete with Employer and/or Diamond in the Business. Therefore, Employee
hereby agrees that, without the prior written consent of Employer, Employee
shall not, during the Term and for a period of two (2) years thereafter,
directly or indirectly, as a director, officer, agent, employee, consultant or
independent contractor or in any other capacity, (i) invest (other than passive
investments in publicly-owned companies which constitute not more than five
percent (5%) of the voting securities of any such company) or engage in any
business or activity that is competitive with the Business within the United
States; (ii) accept employment with or render services to any other company
engaged in the Business as all or any part of such other company's business; or
(iii) contact, solicit, or attempt to solicit or accept business (A) from any
of the customers of Employer during the Term, or (B) from any person or entity
whose business Employer was soliciting during the Term.
(b) If this Agreement is terminated for Just Cause, then Employee
understands that the noncompetition provisions of Subsection 5(a) applying
subsequent to the termination of this Agreement shall be fully enforceable
against Employee without additional payment by Employer.
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59
6. Nonemployment. During the Term, Employee shall not, on his
own behalf or on behalf of any other person, partnership, association,
corporation, or other entity, hire, solicit, or seek to hire any employee of
Employer or Diamond or in any other manner attempt directly or indirectly to
influence, induce, or encourage any employee of Employer or Diamond to leave
the employment of Employer or Diamond, nor shall Employee use or disclose to
any person, partnership, association, corporation, or other entity any
information obtained while an employee of Employer concerning the names and
addresses of Employer's and/or Diamond's employees.
7. Affiliate. For purposes of this Agreement, an "affiliate" of
Employer shall mean any person or entity controlling, controlled by, or under
common control with Employer.
8. Severability. Each provision of this Agreement shall be
treated as a separate and independent clause, and the unenforceability of any
one clause shall in no way impair the enforceability of any of the other
clauses herein. If one or more of the provisions contained in this Agreement
shall, for any reason, be held to be excessively restrictive by reason of the
geographic or business scope or duration thereof so as to be unenforceable,
such provision or provisions shall be construed by an appropriate judicial or
arbitral body by limiting and reducing it or them, so that this Agreement shall
be enforceable to the maximum extent compatible with the applicable law as it
shall then appear.
9. Inventions. Employee shall promptly disclose, grant, and
assign to Employer for its sole use and benefit any and all inventions,
improvements, technical information, and suggestions relating in any way to the
products of Employer or any of its affiliates or capable of beneficial use by
Employer or any of its affiliates, which Employee may conceive, develop, or
acquire during the Term (whether or not during usual working hours), together
with all patent applications, letters patent, copyrights, and reissues thereof
that may at any time be granted for or upon any such invention, improvement, or
technical information. In connection therewith, Employee shall promptly at all
times during and after the Term:
(a) Execute and deliver such applications, assignments,
descriptions, and other instruments as may be necessary or proper in the
opinion of Employer to vest title to such inventions, improvements, technical
information, suggestions, patent applications, patents, copyrights, and
reissues thereof in Employer and to enable it to obtain and maintain the entire
right and title thereto throughout the world; and
(b) Render to Employer, at Employer's expense, all such assistance
as it may require in the prosecution of applications for said patents,
copyrights, and reissues thereof, in the prosecution
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60
or defense of interferences which may be declared involving any of said
applications, copyrights, or patents, and in any litigation in which Employer
may be involved relating to any such inventions, improvements, technical
information, suggestions, patent applications, patents, copyrights, and
reissues thereof.
10. Remedies. Employee acknowledges and recognizes that a
violation or threatened violation by him of the restrictions, agreements, or
covenants contained in Sections 4, 5, 6, or 9 of this Agreement will cause
irreparable damage to Employer and that Employer will have no adequate remedy
at law for such violation or threatened violation. Accordingly, Employee
agrees that Employer shall also be entitled, in addition to any other rights or
remedies existing in its favor, to obtain specific performance or injunctive
relief in order to enforce this Agreement or prevent a breach or further breach
of any provision hereof. Such right to specific performance or injunction
shall be in addition to Employer's right to bring an action for damages
actually sustained by Employer or to exercise any other right or remedy
available to Employer as a result of any breach hereunder.
11. Acknowledgments. Employee acknowledges and recognizes that
(i) the enforcement of any of Sections 4, 5, 6, or 9 of this Agreement by
Employer is necessary to protect the legitimate interests of Employer in
protecting its goodwill, trade secrets and other confidential or proprietary
information, business, accounts, and patronage (collectively, in this Section
11, "Employer's Interests") and will not unreasonably interfere with Employee's
ability to pursue a proper livelihood, and (ii) the restraints imposed by the
covenants of and restrictions on Employee in this Agreement are not greater
than necessary to protect Employer's Interests.
12. Assignment. Employer shall have the right to assign this
Agreement to its successors or assigns only with Employee's consent. The
rights and duties of Employee hereunder are personal to him, and no such right
may be assigned or duty delegated by him.
13. Estate. If Employee dies prior to the expiration of the Term,
any monies that may be due him from Employer under this Agreement as of the
date of his death shall be paid to his estate.
14. Notices. All notices and requests hereunder shall be in
writing and shall be delivered in person, by certified or registered mail,
postage prepaid, or by a nationally recognized overnight delivery service, and
shall be addressed to the addresses specified beside each party's signature at
the end of this Agreement. Such notices and requests shall be deemed delivered
on the day on which personally delivered or, if delivered by mail, on the third
business day after deposit in the United States mail, as evidenced by a post
office receipt furnished to the sender. Any party may change his or its
address for receipt of notices and
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requests hereunder by notice duly given to the other party in accordance with
the provisions of this Section 14.
15. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS
WITHOUT REFERENCE OR REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
16. Costs, Expenses, and Legal Fees. Each party hereto agrees to
pay the costs and expenses, including reasonable attorneys' fees, incurred by
the other party in successfully (i) enforcing any of the terms of this
Agreement or (ii) proving that the other party breached any of the terms of
this Agreement. Except as otherwise provided in the immediately preceding
sentence, Employer and Employee shall pay their own expenses separately
incurred in connection with the preparation and review of this Agreement and
the transactions contemplated hereby.
17. Waiver. The waiver by either party of any breach or provision
of this Agreement must be in writing. No waiver of any breach or failure by
either party to enforce any of the terms or conditions of this Agreement at any
time shall, in any manner, limit or waive such party's right thereafter to
enforce and to compel strict compliance with every term and condition hereof.
One or more waivers of any breach of any covenant, term, or provision of this
Agreement by any party shall not be construed as a waiver of a subsequent
breach of the same covenant, term, or provision nor shall it be considered a
waiver of any other then existing or subsequent breach of a different covenant,
term, or provision.
18. Miscellaneous. This Agreement may be amended only by an
instrument in writing executed by the person against whom enforcement of the
amendment is sought. This Agreement, the schedules and exhibits attached
hereto, and the documents referred to herein or reasonably contemplated hereby,
constitute the entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersede all prior written or
oral agreements and understandings relating to the subject matter hereof.
There are no oral agreements between the parties to this Agreement. The
captions in this Agreement are for convenience of reference only. This
Agreement may be executed in one or more counterparts. This Agreement shall be
binding on the parties hereto and their heirs, estates, personal
representatives, successors, and permitted assigns. This Agreement shall not
be construed against the party responsible for, or primarily responsible for,
preparing this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
EMPLOYER:
ULTRAK, INC.
Address:
0000 Xxxxxxxx Xxxxxx By:________________________________
Xxxxx 000 Title:_____________________________
Xxxxxxxxxx, Xxxxx 00000
EMPLOYEE:
Address:
0000 Xxxxxxxxx Xxxxx ___________________________________
Xxxxxxxxxxxx, Xxxx 00000 Xxxxxxx X. Xxxxxxxx
-8-
63
EXHIBIT A
TO EMPLOYMENT AGREEMENT
THE ULTRAK GROUP
MANAGER'S INCENTIVE PROGRAM
FOR 1995
Purpose:
The manager's incentive program is intended to reward outstanding performance
and to focus attention on the important aspects of your company or division.
It is also intended to help develop you as a person, a leader and a
businessman. A full understanding of the program provisions is critical to its
success.
Program Provisions:
The program encompasses six (6) areas of measurement, some weighted more
heavily than others. The incentive is based off your base salary and will be
rewarded up to a maximum of 50% of your base salary. The six categories of
measurement and the weighting are set forth below:
Grade Weight in
Range Area of Measurement Points
------ -------------------- ------
0-unlimited Actual Net Income to Budget before
corporate 5.0
0-unlimited Actual Net Revenues to Budget 2.5
0-10 Interco cooperation and market
delineation 2.5
0-10 Improvement in Customer Service
Survey Ratings 1.5
0-10 Improvement in Employee Survey
Supervisor Ratings 1.5
0-10 Organization and management of
assets (AR, Inventory) 1.5
Incentive Calculations:
A total of 50 points earned equals an incentive payment of 12 1/2 % of base
salary; 100 points earned equals 25% of base salary; 150 points earned equals
37 1/2 % of base salary. Maximum points that can be earned is 200 (50% of base
salary). Irrespective of the number of points earned, no incentive will be paid
if actual net income before corporate is less than 88% of budget.
64
Example Calculations:
Net income: Up to 88% of actual net income to budget before corporate
equals a grade of 0: 90% equals a grade of 2: 100% equals a
grade of 12: 120% equals a grade of 32, etc. There is no
ceiling in this category.
The grade is then multiplied times the weighting for the total
points earned. For example, if net income before corporate
were 100% of budget, the points would be 12 X weighting
of 5 for a total on this category of 60 points (12 X 5.0 = 60).
Net Revenues: Same as above except the weighting is 2.5 not 5.0. There is
no ceiling in this category. For example, if total revenues
exceed budget by 10%, the points earned would be 22 times 2.5=
55 points earned.
All Other: The maximum grade is 10, however, the weighting factors vary
by categories. Average achievement would be a 5. All of
these areas are subjective.
In the example below, assuming both actual net income before corporate and
revenues were at budget for the year and all other categories scored an 8, the
total points earned would be:
Points Weight Total
------ ------ -----
*Net Income to Budget 12 5.0 60.0
*Revenues to Budge 12 2.5 30.0
*Intercompany cooperation/delineation 8 2.5 20.0
*Improvement in customer service ratings 8 1.5 12.0
*Improvement in employee survey ratings 8 1.5 12.0
*Balance sheet management 8 1.5 12.0
----
Total points earned 146/200
=73% OR 37% OF BASE
Grading and Payment:
The incentive payment request should be prepared by you and presented to your
supervisor for review, discussion and approval. If you qualify, interim
payments can be made after July 15th and can be paid on a monthly basis
thereafter. Interim incentive payments should be based upon the June 30th
financial statements. Total interim payments should not exceed 80% of the
final total incentive estimate.
Final incentive payments, including any adjustments necessary, will be made
after the year end audited financial statements are released.
65
Agreement:
I have read and I understand the provisions of the 1995 Manager's Incentive
Program. My final approved 1995 budget, which is the measuring basis for this
program, is attached.
_________________________ _______________
Managing Director Date
_________________________ _______________
Xxxxxx X. Xxxxxx Date
66
EXHIBIT 9.03
OPINION OF GARDERE & XXXXX, L.L.P.
[attached]
67
G&W Draft: 4-27-95
[FORM OF OPINION OF GARDERE & XXXXX, L.L.P.)
EXHIBIT 9.03
_______________, 1995
Diamond Electronics, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxx 00000
Gentlemen:
We have acted as counsel for Ultrak, Inc., a Colorado corporation
("Ultrak"), and Diamond Electronics Corp., a Texas corporation and a
wholly-owned subsidiary of Ultrak ("Newco"), in connection with the
transactions described in the Agreement and Plan of Reorganization, dated as of
April 11, 1995 (the "Merger Agreement"), by and among Ultrak, Diamond
Electronics, Inc., an Ohio corporation ("Diamond"), the Signing Shareholders,
and Newco. Capitalized terms used in this opinion letter and not otherwise
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
In so acting, we have examined and relied upon the accuracy of
original, certified, conformed, or photostatic copies of such records,
agreements, certificates, and other documents as we have deemed necessary or
appropriate to enable us to render the opinions set forth below. In all such
examinations, we have assumed the legal capacity of natural persons, Ultrak's
compliance with the Colorado Business Corporation Act, the genuineness of
signatures on original documents, the authenticity of all original documents,
and the conformity to such original documents of all copies submitted to us as
certified, conformed, or photographic copies and, as to certificates of public
officials, we have assumed the same to have been properly given and to be
accurate. We also have relied, as to various matters of fact relating to the
opinions set forth below, on certificates of public officials and officers of
Ultrak.
Based upon the foregoing and subject to the limitations,
qualifications, and assumptions set forth herein, we are of the opinion that:
(1) Ultrak is a corporation duly incorporated, validly
existing, and in good standing under the laws of the State of Colorado
and has all requisite corporate power and authority to own, lease, and
operate its properties and to carry on its business as now being
conducted. Ultrak is duly qualified to transact business and is in
good standing as a foreign corporation in the State of Texas. Newco
is a corporation duly incorporated, validly existing, and in good
standing under the laws
68
Diamond Electronics, Inc.
Page 2
of the State of Texas and has all requisite corporate power and
authority to own, lease, and operate its properties and to carry on
its business as now being conducted.
(2) Ultrak and Newco have the full corporate power and
authority to execute and deliver the Merger Agreement, to perform
their obligations under the Merger Agreement, and to consummate the
Merger and the other transactions described therein. The execution
and delivery of the Merger Agreement by Ultrak and Newco, the
performance by Ultrak and Newco of their obligations thereunder, and
the consummation of the Merger and the other transactions described in
the Merger Agreement have been duly and validly authorized by all
necessary corporate action on the part of Ultrak and Newco.
(3) Each consent, approval, order, or authorization of,
or registration, declaration, or filing with, any governmental agency
or public or regulatory unit, agency, body, or authority of the State
of Texas or the United States with respect to Ultrak and/or Newco
required to be made or obtained in connection with the execution,
delivery, or performance of the Merger Agreement by Ultrak and/or
Newco or the consummation of the transactions described therein by
Ultrak and/or Newco has been made or obtained, except for such
consents, approvals, orders, authorizations, registrations,
declarations, or filings, the failure of which to obtain or make would
not have a material adverse effect upon the assets, liabilities,
results of operations, financial condition, business, or prospects of
Ultrak and/or Newco.
(4) The execution, delivery, and performance of the Merger
Agreement, the consummation of the Merger, and the other transactions
described in the Merger Agreement, and the fulfillment of and
compliance with the terms and conditions of the Merger Agreement do no
and will not, with the passing of time or the giving of notice or
both, violate, constitute a breach of, or default under, result in the
loss of any material benefit under, or permit the acceleration of any
obligation under (a) any term or provision of the Articles of
Incorporation or Bylaws of Ultrak or Newco, (b) any judgment, decree,
or order known to us of any court or governmental authority or agency
addressed to and binding on Ultrak or Newco or any of their
properties, or (c) any statute, regulation or rule of the State of
Texas or the United States applicable to Ultrak and/or Newco, except,
in the case of clauses (b) and (c) above, for such violations,
breaches, defaults, or accelerations as do not have a material adverse
effect on the assets, liabilities, results of operations, financial
condition, business, or prospects of Ultrak and/or Newco.
(5) The shares of Ultrak Common Stock that are to be
issued to the shareholders of Diamond pursuant to the Merger (on the
Effective Date and on each of the Adjustment Dates) have been duly
authorized and, when so issued in accordance with the terms of the
Merger Agreement, will be validly issued, fully paid and
nonassessable.
69
Diamond Electronics, Inc.
Page 3
(6) The Merger Agreement has been duly executed and
delivered by Ultrak and Newco and constitutes the valid and binding
agreement of Ultrak and Newco, enforceable against Ultrak and Newco in
accordance with its terms, except (a) as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, or
similar laws affecting the enforceability of creditors' rights
generally, (b) as may be limited by general principles of equity
(regardless of whether such enforceability is considered in an action
at law or a suit in equity), (c) that the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought, and (d)
subject to the Other Common Qualifications, as defined and set forth
in the Legal Opinion Accord of the ABA Section of Business Law (1991).
The foregoing opinions are subject to the following limitations,
qualifications, and assumptions:
(a) Whenever any opinion is qualified by the words "to our
knowledge," "known to us," or other words of similar meaning, the quoted words
mean the actual knowledge, without independent investigation or verification,
of attorneys in our Firm involved in the representation of Ultrak.
(b) In rendering the opinions set forth in paragraph (1) above
concerning the good standing of Ultrak in Colorado and the foreign
qualification and good standing of Ultrak in Texas, we have relied exclusively
upon certificates of authorities of the State of Colorado and Texas, and such
opinions have only the meanings ascribed to those certificates by those
authorities.
(c) This opinion letter is limited in all respects to the laws of
the State of Texas and the federal laws of the United States, and we assume no
responsibility as to the applicability or effect of any other laws. No opinion
is expressed herein with respect to any laws, ordinances, statutes or
regulations of any county, city, or other political subdivision of the State of
Texas.
(d) The opinions and "negative assurance" confirmation expressed
herein are limited to the matters specifically addressed, and no opinion or
confirmation is implied or may be inferred beyond the matters so specifically
expressed. Without limiting the generality of the foregoing, no opinion or
confirmation is expressed herein as to the applicability or the effect of the
antitrust or (except as expressly stated herein) the securities laws and
regulations of the State of Texas or the United States to the Merger Agreement
or any of the transactions described therein.
This opinion letter has been furnished to you pursuant to Section 9.03
of the Merger Agreement, and no other person or entity shall be entitled to
rely upon it, or to quote, distribute, or otherwise use it for any other
purpose, without our prior written consent. This
70
Diamond Electronics, Inc.
Page 4
opinion letter is given as of the date hereof, and we assume no obligation to
advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions or
confirmation contained herein.
Very truly yours,
GARDERE & XXXXX, L.L.P.
By:______________________________
Xxxxxxx X. Xxxxxxxx, Partner
71
SCHEDULE 2.01
STATES:
Diamond Electronics, Inc., an Ohio corporation, files state income tax and/or
franchise tax returns in the following states:
1. Maryland
2. New Jersey
3. Ohio
4. Pennsylvania
5. Texas
6. West Virginia
Currently, Diamond owns no property outside of Ohio and has one employee in
Maryland.
Diamond Electronics, Inc. is a corporation duly organized, validly existing and
in good standing under the laws of the State of Ohio.
CITIES:
Diamond employees personnel in, and files corporation city income tax returns
with, the following cities:
1. Columbus, Ohio
2. Lancaster, Ohio
72
SCHEDULE 2.02
INVESTMENTS OR SUBSIDIARIES:
Diamond currently owns 100 percent of the common stock outstanding of Alpha
CCTV, Inc., an Ohio corporation. This subsidiary was formed to facilitate the
acquisition of certain assets of Alpha Electronics, Inc. As of March 31, 1995,
Alpha CCTV, Inc., was inactive.
Diamond owns 100 percent of the common stock outstanding of Polymatrix, Inc.,
an Ohio corporation. In 1988, Polymatrix, Inc. acquired substantially all of
the assets and specified liabilities of Pearl Polymatrix, Inc., a Georgia
corporation. In 1993, Polymatrix, Inc. was formally dissolved.
Diamond has (or had) a common stock equity interest (7.5 percent) of Diamond
Automation Companies, Inc. ("DAC") (and warrants to acquire an additional 7.5
percent) arising from a June 8, 1992, modification of an asset purchase
agreement by which DAC had previously acquired the Process Automation Systems
assets of Diamond. DAC defaulted on its obligation to pay the cash purchase
price for the assets (which has since been written off as uncollectible by
Diamond) and DAC is believed to be inactive.
73
SCHEDULE 2.05(C)
All 97,786 warrants previously issued under warrant agreements as disclosed in
the Diamond Financial Statements were called subsequent to January 1995. Of
these warrants, 24,893 expired without being exercised and were paid a call
premium of five cents per share and 72,893 were exercised as shown in the
adjustments to Schedule 2.05(d).
As of April 28, 1995, no stock options were outstanding and exercisable.
74
SCHEDULE 2.05(d)
A listing of the record holders of Diamond as of March 31, 1995 is attached.
75
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 1
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
ABF Freight 45 45 5.614 5 0
000 Xxxxx Xxxx; Xxxxxxxx, XX 00000
Xxxxx Barre Company 58 58 7.236 7 0
X.X. Xxx 00; Xxxxxxxx, XX 00000
All American 22 22 2.745 2 0
0000 Xxxxxx Xxxx; Xxxxxxx, XX 00000
Allstate Financial Corp. 42 42 5.240 5 0
0000 Xxxxx Xxx #000; Xxxxxxxxxx, XX 00000
Alpha Security Systems 58 58 7.236 7 0
00000 Xxxx Xxx; Xxx Xxxxxxx, Xxxxx 00000
Amatom Electronics 24 24 2.994 2 0
000 Xxxxx Xxxxxx; Xxx Xxxxx, XX 00000
American Credit Indemnity 287 287 35.806 35 35
300 St. Xxxx Place; Xxxxxxxxx, XX 00000-0000
AMP, Inc. 89 89 11.104 11 11
XX-0, 0-00, Xxx 0000; Xxxxxxxxxx, XX 00000-0000
Anchor Rubber Company 350 350 43.666 43 43
000 X. Xxxxxxxxx, Xxx 000; Xxxxxx, XX 00000
ANR Freight Systems 48 48 5.988 5 0
Department O; Xxxxxx, XX 00000
Apple Graphics 76 76 9.482 9 0
X.X. Xxx 0000; Xxxxxx, XX 00000
Argrove Box Company 18 18 2.246 2 0
X.X. Xxx 00000; Xxxxxx, XX 00000
Arius 101 101 12.601 12 12
0000 Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000
Arjay 6 6 0.749 0 0
0000 Xxxxx Xxxxxx, Xxxxxxxxxxx, XX 00000
Associated Spring/Xxxxxxx 15 15 1.871 1 0
X.X. Xxx 00000, Xxxxxxx, XX 00000
76
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 2
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Astro Industries 992 992 123.762 123 123
0000 Xxxxxx Xxxxx Xxxx, Xxxxxx, XX 00000
ATT 1,137 1,137 141.853 141 141
X.X. Xxx 00000, Xxxxxxx, XX 00000
Automatic Data Processing 190 190 23.704 23 23
0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000
Avis 929 929 115.902 115 000
Xxx 000, Xxxxxx Xxxx, XX 00000
BH Electronics 37 37 4.616 4 0
00000 Xxxx Xxxx Xxxxx, Xxxxxxxxxx, XX 00000
Xxxxxx, Xxxxxx 19 19 2,370 2 0
0000 Xxxxxxx Xxxxxxx Xx XX, Xxxxxxxxx, XX 00000
Xxxxx, Xxx 670 670 83.589 83 83
0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Basic Distribution 17 17 2.121 2 0
000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
Xxxxxx, Xxxxx 145 145 18.090 18 18
0000 Xxxxx-Xxxxxx Xx, Xxxxxxxxx, XX 00000
Bearings, Inc. 38 38 4.741 4 0
0000 Xxxx Xxxxx Xx, Xxxxxxxx, XX 00000
Xxxx Industries, Inc. 1,205 1,205 150.336 150 150
000 Xxxxxxx Xxxx Xxxxx, Xxxxxx, XX 00000
Xxxxxxx, Xxxxxxx 142 142 17.716 17 17
0000 Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxx, Xxxxxx X. 4,400 4,400 548.946 548 548
00 Xxxx 00xx Xx #0X, Xxx Xxxx, XX 00000-0000
Xxxxxxxxx, Xxxx X. 363,473 16,893 380,366 47,454.607 47,454 47,454
0000 Xxxxxx Xxxxxx Xx, Xxxxxxxxxxxx, XX 00000
Xxxxxxxxx, Xxxxx X. 15,000 4,000 19,000 2,370.447 2,370 2,370
0000 Xxxxxxx Xxxx Xxxx 0X, Xxxxxxx, XX 00000
77
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 3
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxxxxxxx, Xxxxxxxxx X. 15,000 4,000 19,000 2,370.447 2,370 2,370
0000 Xxxxx Xxx Xxxxx, Xxxxxxxxxxx, XX 00000
Xxxxxxxxx, Xxxxxxxx X. 637,637 637,637 79,551.836 79,551 79,551
0000 Xxxxxx Xxxxxx Xx, Xxxxxxxxxxxx, XX 00000
Xxxxxxxxx Investment Capital 0 0 0.000 0 0
0000 X. Xxxxxxxx Xx #000, Xxxxxxxxxxxx, XX 00000
Xxxxxx & French 6,709 6,709 837.017 837 837
0000 Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000
Black Box Corporation 74 74 9.232 9 0
X.X. Xxx 00000, Xxxxxxxxxx, XX 00000
Blanket Security 117 117 14.597 14 14
0000 Xxxxxx Xxx Xxxxx 000, Xxxxxxx, XX 00000
Xxxxx, Xxxxxxx 226 226 28,196 28 28
0000 Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Blue Ash Electronics 45 45 5.614 5 0
0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
Blue Chip Fasteners 163 163 20.336 20 20
0000 Xxxxxxx Xx, Xxxxxxxxxx, XX 00000-0000
Xxxxx, Xxxxxx X. 728 728 90.826 90 90
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000
Xxxxx, Xxxxxxx 675 675 84.213 84 84
0000 Xxxx Xxxx Xxxxx Xxxx, Xxxxxxxxx, XX 00000
Bopla Enclosures 51 51 6.363 6 0
0000 Xxxxxxxxx Xxx, Xxxxxxxxx, XX 00000
Bradley, B.B. 118 118 14.722 14 14
0000 Xxxxx Xxxx, Xxxxxxxxxxx, XX 00000
Brazos Components Inc. 54 54 6.737 6 0
X.X. Xxx 000 Xxxx 000, Xxxxxxx Xxxxx, XX 00000
78
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 4
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxxxxx, Xxxxx 71 71 8.858 8 0
0000 Xxxxxx Xxx, Xxxxxxxxx, XX 00000
Xxxxx & Xxxxxxxx 456 456 56.891 56 56
X.X. Xxx 000000, Xxxxxxxxx, XX 00000
Browns Creek Corporation 5,500 5,500 686.182 686 686
000 0xx Xxx Xxxxx, Xxxxxxxxx, XX 00000
Burlington Air Express 83 83 10.355 10 0
0000 Xxx Xxxxxxx Xxx, Xxxxxxxxxx, XX 00000
Xxxxxxxx Industrial Supply 201 201 25.077 25 00
Xxx 000, 000 Xxxxxx Xx, Xxxxxxxxx, XX 00000
Call Dram Company 60 60 7.486 7 0
000 00xx Xxxxxx, Xxx Xxxxxxxxx, XX 00000
Capitol Bankers Life 124 124 15.470 15 15
X.X. Xxx 00000, Xxxxxxxxxxx, XX 00000-0000
Cardinal Container Corp. 820 820 102.304 102 102
X.X. Xxx 00000, Xxxxxxxx, XX 00000
Cellular One/New Par 104 104 12.975 12 12
000 Xxxx Xxxxxx Xxxxxx Xx, Xxxxxxxxxxx, XX 00000
Central Ohio Welding Inc. 734 734 91.574 91 91
0000 Xxxxxxxx Xxx, Xxxxxxxx, XX 00000
Xxxxxxx, Virginia 161 161 20.086 20 20
0000 Xxxxxxxxxx Xx, Xxxxxxxxx, XX 00000
Cincinnati Gasket 65 65 8.109 8 0
00 Xxxxxxxx Xxx, Xxxxxxx, Xxxxxxxxxx, XX 00000
City Securities Corp. 50,400 48,000 98,400 12,276.422 12,276 12,276
X.X. Xxx 00000, Xxxxxxxxxxxx, XX 00000
Clover, Xxxx 445 445 55.518 55 55
000 Xxxx Xxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxxx, Xxxxxx X. 690 690 86.085 86 86
0000 Xxxx-Xxxxxxxx Xx XX, Xxxxxxxxx, XX 00000
79
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 5
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Columbia Gas 2 2 0.250 0 0
X.X. Xxx 000000, Xxxxxxxx, XX 00000
Columbus & Southern 99 99 12.351 12 12
X.X. Xxx 0000, Xxxxxxxx, XX 00000
Commercial Optical 1,116 1,116 139.233 139 139
000 Xxxxxx Xx, Xxxxxxxxxx XX 00000
Commercial Printing 162 162 20.211 20 20
X.X. Xxx 0000, Xxxxxxxxx, XX 00000
Compax 35 35 4.367 4 0
X.X. Xxx 00000, Xxxxx Xxx Xxxxxx, 00000
Computer Products Inc. 625,667 625,667 78,058,454 78,058 78,058
0000 Xxxx Xxxx, Xxxx Xxxxx, XX 00000
Con Way Central Express 39 39 4.866 4 0
X.X. Xxx 0000, Xxxxxxxx, XX 00000
Xxxxxx, Xxxxxxx 163 163 20.336 20 20
000 Xx. Xxx Xxx, Xxxxxxxxx, XX 00000
Conrac Corporation 950 950 118.522 118 118
0000 Xxxxx Xxxxxxxx Xxx, Xxxxxx, XX 00000
Control Design Supply 45 45 5.614 5 0
0000 Xxxxxxx Xxx #000, Xxxxxxxxxxxx, XX 00000
Coopers & Xxxxxxx 3,070 3,070 383.014 383 383
Department 1160, Xxxxxxxxxx, XX 00000
Copco Papers 1,648 1,648 205.605 205 205
X.X. Xxx 00000, Xxxxxxxx, XX 00000
Xxxxx Xxxxxxxx 8,914 8,914 1,112.114 1,112 1,112
X.X. Xxx 000, Xxxxxxx, XX 00000
CT Corporation Systems 40 40 4.990 4 0
X.X. Xxx 0000, Xxxxx Xxxxxxx Xxx, Xxx
Xxxx, XX 00000
Custom Bobbin Windings 48 48 5.988 5 0
X.X. Xxx 0000, Xxxxxxxxxx, XX 00000
80
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
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***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Custom Coil & Transformer 521 521 65.000 65 65
X.X. Xxx 0000, Xxxxxxxxxx, XX 00000
D&B Power 1,178 1,178 146.968 146 146
X.X. Xxx 00X, Xxxxxxxx, XX 00000
Xxxxxx, Xxxxxx X. 367,475 367,475 45,846.321 45,846 45,846
0000 Xxx Xxxx Xxxxx, Xxxxxxxxxxxx, XX 00000
Xxxxxxx Oxygen 5 5 0.624 0 0
000 Xxxxx Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Deltec Corporation 38 38 4.741 4 0
0000 Xxxxx Xx, Xxx Xxxxx, XX 00000
DHL Airway 79 79 9.856 9 0
000 Xxxx Xxxxxxx Xx, Xxxxxxx Xxxx, XX 00000
Diamond Power Specialty 1,236 1,236 154.204 154 154
0000 Xxxx Xxxx Xx, Xxxxxxxxx, XX 00000
Digital Equipment Corp. 766 766 95.566 95 95
0000 Xxxxx Xxx, Xxxxxxxxx, XX 00000-0000
Xxxxxxx, Xxxxxx 148 148 18.465 18 18
000 Xxxxxx Xxxx Xx, Xxxxxxxxx, XX 00000
Xxxxx, Xxxxx X. 4,950 4,950 617.564 617 617
0000 Xxxxxxxx Xx, Xxxxxxxxxxxx, XX 00000
Xxxxx, Xxxxxx X. 27,500 27,500 3,430.911 3,430 3,340
0000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
Xxx Xxx Electronics, Inc. 180,148 180,148 22,475.333 22,475 22,475
000-00 Xxxx Xxxx-Xxxx 3.4 Fl. Bon Chun Xxxx.
Xxxxxx-Xx, Xxxxx, 000-000 Xxxxx
Xxxxxx, Xxxxx X. 8,800 8,800 1,097.891 1,097 1,097
000 Xxxxxx Xxxxx, Xxx Xxxx, XX 00000
Xxxx & Xxxxxxxxxx 00 00 8.608 8 0
000 Xxxx Xxx, Xxx Xxxx, XX 00000
81
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
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***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxxx Instrument 81 81 10.106 10 0
X.X. Xxx 000, Xxxxxxxx Xxxx, XX 00000
Eagle Convex Glass Co. 181 181 22.582 22 22
X.X. Xxx 0000, Xxxxxxxxxx, XX 00000
East Coast Camera Center 45 45 5.614 5 0
000 Xxxxx 00xx Xx, Xxxxxxxx Xxxxx, XX 1693
Xxxxxxxxx, Xxxxxxx 279 279 34.808 34 34
000 X. Xxxxx Xxx, Xxxxxxxxx, XX 00000
Electro Marketing 988 988 123.263 123 123
00 Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Electro Mechanical 84 84 10.480 10 0
00000 Xxxxxxx Xxx, Xxxxxx, XX 00000
Electromech Inc. 214 214 26.699 26 26
0 Xxxxxxx Xx, Xxxxxxxxx, XX 00000-0000
Electronic Security Sys 83 83 10.355 10 0
00000 Xxxxxxx, Xxxxxxx, XX 00000
Electronic Service Parts 168 168 20.960 20 20
0000 Xxxx Xxxxxxxxxx Xx, Xxxxxxxxxxxx, XX 00000
Electronics Marketing Corp. 2,701 2,701 336.978 336 336
Corp. Processing Dept, 0828, Xxxxxxxx, XX
00000
Elmwood Sensors, Inc. 60 60 7.486 7 0
000 Xxxxxxxxxxxx Xxxx Xx, Xxxxxxxxx, XX 00000
Xxxxx Freight 66 66 8.234 8 0
Xxx 0000, Xxxxxxxx, XX 00000
Xxxxxx, Xxx 741 741 92.447 92 92
000 Xxxxx Xxx, Xxxxxxxxx, XX 00000
Esro 10 10 1.248 1 0
0000 Xxxxxxx Xx, Xxxxx 000, Xxxxx, XX 00000
82
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***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxxxxxx, Xxxxxx 185 185 23.081 23 23
000 Xxxxxx Xxxxx Xx, Xxxxxxxxxxxx, XX
00000-0000
Exair Corporation 1,442 1,442 179.904 179 179
0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
FEMCO 607 607 75.370 75 75
X.X. Xxx 000000, Xxxxxxxxxx, XX 00000
Xxxxxx, X.X. 36 36 4.491 4 0
X.X. Xxx 00000, Xxxxxxxxx, XX 00000
Xxxxxxx, Xxxxx X. 8,800 8,800 1,097.891 1,097 1,097
X.X. Xxx 00000, Xxxxxxxxxxxx, XX 00000
Filtrine Manufacturing 4,821 4,821 601.470 601 601
00 Xxxx Xx, Xxxxxxxxxxx, XX 00000
Xxxxx, Xxxx 428 428 53.397 53 53
00000 Xxxxx Xxxx, Xxxxx, XX 00000
Fluid Technology 702 702 87.582 87 87
0000 Xxxxxx Xx Xxxx X, Xxxxxxxx, XX 00000
Xxxxxxxx Rubber & Supply 48 48 5.988 5 0
0000 Xxxxxx Xxx, Xxxxxxxx, XX 00000
Xxxxxxx, (Xxxxx) Xxxxx 105 105 13.100 13 13
0000 Xxxx Xxxx Xxx, Xxxxxxxxx, XX 00000
Frontier Foundries 1,457 1,457 181.776 181 181
X.X. Xxx 000, Xxxxxxxxxx, XX 00000
Fujinon Inc. 6,042 6,042 753.802 753 753
00 Xxxx Xxxxx Xxxxx, Xxxxx, XX 00000
Xxxx, Xxxxx Melody 177 177 22.083 22 22
000 Xxxx Xxxx Xxx, Xxxxxxxxx, XX 00000
Garrock 819 819 102.179 102 102
0000 Xxxxx Xxxx, Xxxxxxxx, XX 00000
General Machine & Mould 935 935 116.651 116 116
000 Xxxx Xxxx Xx, Xxxxxxxxx, XX 00000
83
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PAGE 9
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* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
GFS Manufacturing 452 452 56.392 56 56
X.X. Xxx 0000, Xxxxx, XX 00000
XX Xxxxxxx Sales 1,356 1,356 169.175 169 169
000 Xxxxxxx Xxx Xxxx 0, Xxxxxxxxx, XX 00000
Glicks Furniture 38 38 4.741 4 0
0000 Xxxx 0xx Xxx, Xxxxxxxx, XX 00000
Xxxxxx, Inc. Xxxxx X. 238 238 29.693 29 29
X.X. Xxx 000, Xx Xxxx, XX 00000
Xxxxxxx, Xxxxxxx 156 156 19.463 19 19
000 Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxx, Xxxxx 379 379 47.284 47 47
0000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Grayhill Inc. 155 155 19.338 19 19
X.X. Xxx 0000, Xxxxxxx, XX 00000
Xxxx, X.X. Company 646 646 80.595 80 80
000-00 Xxxxxx Xxxx, Xxxxxxx, XX 00000
Xxxxxx, Xxxx 226 226 28.196 28 28
000 Xxxx Xxx, Xxxxxxxxx, XX 00000
Xxxxxx, Xxxx 314 314 39.175 39 39
000 Xxxx Xxx, Xxxxxxxxx, XX 00000
Xxxxxx, Xxxxxxx 173 173 21.584 21 21
0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxxx, XX
00000-0000
Helen's Flowers 37 37 4.616 4 0
000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Xxxxxxxxxx, Xxxx 983 983 122.639 122 122
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Xxxxx Packing & Rubber 316 316 39.424 39 39
X.X. Xxx 000 Xxxxx, Xxxxxxxxxx, XX 00000
Hertz Corporation 153 153 19.088 19 19
X.X. Xxx 00000, Xxxxxxxx Xxxx, XX 00000
84
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 10
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Hewlett Packard 299 299 37.303 37 37
X.X. Xxx 00000, Xxx Xxxxxxxxx, XX 00000
Xxxx, Xxxxxxxxxxx 355 355 41.795 41 41
0000 Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000
Xxxxxx'x Sunoco 41 41 5.115 5 0
0000 Xxxxx Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxxxxxx, Xxxxxxx X. 13,200 13,200 1,646.837 1,646 1,646
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000
HISCO 51 51 6.363 6 0
0000 Xxxxx Xxxxxxxxx Xx, Xxxxx, XX 00000
Hoffesetter, X.X. 126 126 15.720 15 15
0000 Xxxxxxxxxx Xx, Xxxxxx, XX 00000
Xxxxxx, Xxxxxxx 378 378 47.159 47 47
0000 Xxxxxxxx Xx Xx 0 Xxxxx, Xxxxxxxxxx,
XX 00000
Xxxxxxxxxx, Xxxxx 276 276 34.434 34 34
0000 Xxxxxxx Xx XX, Xxxxxxxxx, XX 00000
Xxxxxxxxxx, Xxxxxx 00 00 4.616 4 0
00000 Xxx Xxxxxx-Xxxxxxxxx, Xxxxxxxxxxx,
XX 00000
Xxxxxx, Xxxxxx Inc. 404 404 50.403 50 50
0000 Xxxxxxxx Xx, Xxxxxxxx, XX 00000
XXXX Printing 186 186 23.205 23 23
X.X. Xxx 000, Xxxxx, XX 00000
Hurricane Electronics Lab 55 55 6.862 6 0
X.X. Xxx 0000, Xxxxxxxxx, XX 00000
Image Memory Systems 51 51 6.363 6 0
0000 Xxxxxxx Xx, Xxxxxx, XX 00000
Indiana University Found. 52,800 52,800 6,587.348 6,587 6,587
Xxxxxxxxx Xxxxx, Xxx 000, Xxxxxxxxxxx, XX 00000
85
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 11
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Instant Replay Video 855 855 106.670 106 106
0000 Xxxxxxxxxxxx Xxxx, Xxxxxxxx Xxxxxxxx,
XX 00000
Instrument Technology 26,835 26,835 3,347.945 3,347 3,347
X.X. Xxx 000, Xxxxxxxxx, XX 00000
Intermountain 25 25 3.119 3 0
00000 Xxxxxx Xxxxxx Xxxxxx, Xxxxxx, XX
00000-0000
International Space Optics 9,792 9,792 1,221.654 1,221 1,221
0000 Xxxxxxxx Xx, Xxxxxxxxxx Xxxxx, XX 00000
Xxxxx, Xxxxxx X. 17,600 17,600 2,195.783 2,195 2,195
00000 X. Xxxx Xxxxxx, Xxxxxxxxx, XX 8011
X.X. Xxxxxxx & Assoc. 153 153 19.088 19 19
0000 Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
XX Xxxxxxxxxx Xxxxxx Xx. 0 0 1.123 1 0
00000 Xxxxxxxxxx Xx, Xxxxxxx, XX 00000
JR Signs 25 25 3.119 3 0
00 Xxxxx Xx, Xxxxxxxxx, XX 00000
JR Xxxxxxxx Co. 5,948 5,948 742.075 742 742
X.X. Xxx 00000, Xxxxxxx, XX 00000
Xxx X. Xxxxxx & Co. Inc. 18 18 2.246 2 0
0000 Xxxx Xx, Xxxxxxxx, XX 00000
Xxxxxxx, Xx. & Xxx. Xxxx 17,600 17,600 2,195.783 2,195 2,195
00000 Xxx Xxxx Xxx, Xxxxxx, XX 00000
Kailay International Corp. 508 508 63.378 63 63
17F, 695, TUN HUA S Rd Taipei, Taiwan, ROC
Kansas City Equip. Co. 512 512 63.877 63 63
X.X. Xxx 0000, Xxxxxxx Xxxxxxx, XX 00000
Xxxx, Xxxxx X. 8,800 8,800 1,097.891 1,097 1,097
000 Xxxx 00xx Xx #000, Xxxxxxxxxxx, XX 00000
Xxxx, X. Xxxxx 100 100 12.476 12 12
00000 XXX Xxxx, Xxxxxxxxx, XX 00000
86
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 12
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxx, Xxxx 765 765 95.442 95 95
00 Xxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxx, Xxxxx 84 84 10.480 10 0
000 Xxxx Xxxxxx, Xxxxxxxxxxx, XX
00000-0000
Xxxxxxxx, Xxxx 1,052 1,052 131.248 131 131
000 Xxxxxxxx Xx, Xxxxxxxxxxxx, XX 00000
Key Blue Print Inc. 217 217 27.073 27 27
000 Xxxx Xxxxxxxxxx Xxx, Xxxxxxxx, XX 00000
Xxxxx, Xxxxxx 821 821 102.428 102 102
000 Xxxxxxx Xxx, Xxxxxxxx, XX 00000
Kleinhuis (HKL) 26 26 3.244 3 0
Xxxx X-000, Xxxxxxxx, XX 00000
Xxxxxxx, X. Xxxxxxx 634,801 634,801 79,198.015 79,198 79,198
X.X. Xxx 0000, Xxxxxxxxxxxx, XX 00000
Xxxx, Xxx 340 340 42.419 42 42
0000 Xxxx Xxxxx Xx, Xxxxxxxxx, XX 00000
L & B Investments 61,411 61,411 7,661.660 7,661 7,661
0000 Xxxxxxxx Xxxxxxxx, Xxxxxxxxxxxx, XX 00000
Lacrosse, Xxxxx 17,600 17,600 2,195.783 2,195 2,195
0000 Xxxxxxxxxxx Xx, Xxxxxxxxxxxx, XX 00000
Lancaster Electro Plating 25 25 3.119 3 0
X.X. Xxx 000, Xxxxxxxxx, XX 00000
Lancaster Hospital 50 50 6.238 6 0
000 Xxxxx Xxxxx Xx, Xxxxxxxxx, XX 00000
Lancaster Restaurant Supply 194 194 24.204 24 24
000 Xxxxx Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxx, Xxxxxx X. 4,400 4,400 548.946 548 548
0000 Xxxxxxxx Xx, Xxxxxxxxxxxx, XX 00000
Xxxxxxx-Xxxxxxx Co. 397 397 49.530 49 49
0000 Xxxxxx Xxx, Xxxxxxxxxx, XX 00000
87
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***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
L-Com 20 20 2.495 2 0
0000 Xxxxxx Xx. Xxxxx Xxxxxxx, XX 00000
Xxx Spring Co. 20 20 2.495 2 0
0-000 00xx Xxxxxx, Xxx Xxxx, XX 00000
Xxxxxx Poly-Scientific 5,137 5,137 640.894 640 640
0000 Xxxxx Xxxx Xxxxxx, Xxxxxxxxx, XX 00000
Lowes of Ohio 134 134 16.718 16 16
0000 Xxxxxxxx Xx., Xxxxxxxxx, XX 00000
M C G Electronics 39 39 4.866 4 0
00 Xxxx Xx., Xxxx Xxxx, XX 00000
Magnetic Spring Water Co. 84 84 10.480 10 0
0000 Xxxx Xxxxx Xx., Xxxxxxxx, XX 00000
000 Xxxxx Xxxxxx; Xxx Xxxxx, XX 00000
Mahrdt, J. Xxxx Xx. 25,300 25,300 3,156.438 3,156 3,156
0000 Xxxxxx Xxx Xx., Xxxxxxxxxxxx, XX 00000
000 Xx. Xxxx Xxxxx; Xxxxxxxxx, XX 00000-0000
Xxxxxxxx, Xxxxxxx 274 274 34.184 34 34
0000 Xxxxxxx Xx., XX, Xxxxxxxxx, XX 00000
XX-0 0-00, Xxx 0000; Xxxxxxxxxx, XX
00000-0000
Xxxxx, Xxx 284 284 35.432 35 35
00000 Xxxxxx Xx. Xx., Xxxxxxxxxxxxx, XX 00000
000 X. Xxxxxxxxx, Xxx 000; Xxxxxx, XX 00000
May Tech Associates 88 88 10.979 10 0
000 Xxxxxxx Xx., Xxxxxxxx, XX 00000
XxXxxxxxxxx Oil Co. 84 84 10.480 10 0
0000 Xxxx Xxxxxxxxxx Xxx., Xxxxxxxx, XX 00000
X.X. Xxx 0000; Xxxxxx, XX 00000
MCI Telecommunications 430 430 53.647 53 53
X.X. Xxx 00000, Xxxxxxxxxx, XX 00000
MCI/Telefax Service 2,804 2,804 349.828 349 349
X.X. Xxx 00000, Xxxxxxxxxxxx, XX 00000
MCI/Western Union Int. 18 18 2.246 2 0
X.X. Xxx 00000, Xxxxxxxxxxxx, XX 00000
XxXxxxxx Corporation 6 6 0.749 0 0
Xxxx. X-000X Xxxxxxxxxx, XX 00000
88
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PAGE 14
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* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
XxXxxxxx Electric 78 78 9.731 9 0
000 Xxxxx Xxxxx Xxx., Xxxxxxxx, XX 00000
XxXxxxxx, Xxxxxx 19,131 19,131 2,386.791 2,386 2,386
0000 Xxxx Xx., Xxxxxxxxx, XX 00000
XxXxxxxx-Xxxx Supply Co. 168 168 20.960 20 20
X.X. Xxx 0000, Xxxxxxx, XX 00000
Xxxxxxxx Electric 87 87 10.854 10 0
000 Xxxxx 000 Xxxx Xxxxxx, XX 00000
Mid Ohio Electric 70 70 8.733 8 0
0000 XxXxxxxx Xxx., Xxxxxxxx, XX 00000
Mid South 37 37 4.616 4 0
0000 Xxxxxxxxxxxxx Xx., Xxxxxxx, XX 00000
Midstate Sales, Inc. 12 12 1.497 1 0
Corp Processing Dept., Xxxxxxxx, XX 00000
Minnesota Mining & Mfg. 330 330 41.171 41 41
00000 Xxxxxxxx Xx., #000, Xxxxxxxxxx, XX 00000
0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX 00000
Xxxxxxxx, Xxxxxxx X. 10,000 10,000 1,247.604 1,247 1,247
000 Xxxxxxxxx Xx., Xxxxxxxxxxxx, XX 00000
Xxxxxxxxxx, Xxxxxxx 257 257 32.063 32 32
0000 Xxxxx Xxxxx Xx., Xxxxxxxxx, XX 00000
0000 Xxxxx-Xxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxx, Xxxxx X. 59 59 7.361 7 0
000 Xxxxxx Xxx., Xxxxxxxxx, XX 00000
0000 Xxxx Xxxxx Xx, Xxxxxxxx, XX 00000
Motion Industries 1,607 1,607 200.490 200 200
X.X. Xxx 00, Xxxxxxxxx, XX 00000
000 Xxxxxxx Xxxx Xxxxx, Xxxxxx, XX 00000
Xxxxxxxx, Xxxxxx X. 135,850 135,850 16,948.698 16,948 16,948
000 Xxxxxx Xxxx., Xxxxxxxxxx, XX 00000
Xxxxxxxx, Xxxxxxx XXX 653,120 653,120 81,483.501 81,483 81,483
000 Xxxx Xxxx Xx., Xxxxxx Xxxx, XX 00000
89
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PAGE 15
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* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxxxxx, Xxxx 103 103 12.850 12 12
0000 Xxxxxxxxxxx Xx., Xxxxxxxxx, XX
N&S Enterprises 8,800 8,800 1,097.891 1,097 1,097
000 Xxxxxxxxxx Xx Xxx Xxxxxxx, XX 00000
National Utility Service 5,664 5,664 706.643 706 706
X.X. Xxx 000 Xxxx Xxxxx, XX 00000
Newark Electronics 7,469 7,469 931.835 931 931
0000 Xxxx 0xx Xxx, Xxxxxxxx, XX 00000
Xxxxxx, Xxxxx 1,100 1,100 137.236 137 137
X.X. Xxx 000000, Xxxxxxxxx, XX 00000
North Hills Electronics 400 400 49.904 49 49
000 Xxxxxxxxx Xxxx, Xxxxxxx, XX 00000-0000
Xxxxxx, Xxxxx 486 486 60.634 60 60
16 Xxxxx Xxxxxxx Xx, Xxxxxx Xxxxx Xxxxxx, 00000
Ohio Xxxx Telephone 557 557 69.492 69 69
00 Xxxxxxxx Xxxxx, XX 000, Xxxxxxxxx, XX 00000
Ohio Counting Scale South 61 61 7.610 7 0
0000 Xxxxxxxx Xxxxxx Xxx, Xxxxxxxxxx, XX 00000
Ohio Fluid Power 22 22 2.745 2 0
00000 Xxxxxxxx Xxxxx, Xxxxxxxxxxx, XX 00000
Ohio Foundry 173 173 21.584 21 21
000 XX Xxxxxx, Xxxxxxxx, XX 00000
Omni Controls 651 651 81.219 81 81
00000 X. Xxxxxxx Xxx #000, Xxxxx, XX 00000
Xxxxxxx, Xxxxxx X. 26,400 26,400 3,293.674 3,293 3,293
0000 Xxxxxxxx Xxx, Xxxxxx, XX 00000
Oyl-Air Company 620 620 77.351 77 77
00000 Xxxxxx Xxxxx Xx, Xxxxxxxxxxx, XX 00000
P I Rod Inc. 492 492 61.382 61 61
X.X. Xxx 000, Xxxxxxxx, XX 00000
90
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***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Panasonic Audio Video 17,245 17,245 2,151.493 2,151 2,151
X.X. Xxx 0000, Xxxxxxxx, XX 00000
Xxxx, Xxxx X. Xx. 23,382 23,382 3,540.949 3,540 3,540
0000 Xxxxxxxxx Xx, Xxxxxx, XX 00000
PC World 7 7 0.873 0 0
X.X. Xxx 00000, Xxxxxxx, XX 00000
Pearl Polymatrix Inc. 35,000 35,000 4,366.613 4,366 4,366
000 XxXxxxx Xx, Xxxxxx, XX 00000
Xxxxxx, Xxxxxx 173 173 21.584 21 21
0000 Xxxxxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxxx Equipment Co. 1,245 1,245 155.327 155 155
000 Xxxxxxx Xx #00, Xxxxxxxxxx, XX 00000
Pitney Xxxxx 129 129 16.094 16 16
X.X. Xxx 00000, Xxxxxxxxxx, XX 00000
Xxxxxxx Division 2,747 2,747 342.717 342 342
X.X. Xxx 0000 X-0000, Xxxxxxxxxxxx, XX 00000
Plant, Xxxxx 277 277 34.559 34 34
00000 Xxxxxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000
Polaroid Corporation 13 13 1.622 1 0
X.X. Xxx 00000, Xxxxxxx, XX 00000
Principal Financial Corp. 152 152 18.964 18 18
000 Xxxx Xx, Xxx Xxxxxx, XX 00000
Priority Dispatch Inc. 21 21 2.620 2 0
0000 Xxxxxxxx Xx, Xxxxxxxxxx, XX 00000-0000
Xxxxxxxxx, Xxxxxx X. 15,088 15,088 1,882.385 1,882 1,882
000 X. Xxxxxxx, Xxxxxxxx, XX 00000
Priz Company 1,810 1,810 225.816 225 225
0000 Xxxxxxxxx Xx, Xxxx Xxxx, XX 00000
91
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PAGE 17
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* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Prodco Equipment 85 85 10.605 10 0
X.X. Xxx 000000, Xxxxxxxxx, Xxxx 00000
Quatech 118 118 14.722 14 14
000 Xxxx Xxxxxx Xxxxxxx, Xxxxx, XX 00000
RL Transfer Inc. 20 20 2.495 2 0
0000 XX 0 & XX 00X, Xxxxxxxxxx, XX 00000
Xxxxxxxx Industries 247 247 30.816 30 30
0000 Xxxxxxxx Xx, Xxx Xxxxxxx, XX 00000-0000
Xxxxx Laboratories 49 49 6.113 6 0
000 Xxxxx Xxxxxxxxx Xxx, Xxxxxxxxxx, XX
00000-0000
Xxxxx, Xxxxxxx 118 118 14.722 14 14
0000 Xxxxxxxxxx Xx, Xxxxxxxxx, XX 00000
Rental Uniform Service 8 8 0.998 0 0
X.X. Xxx 000, Xxxxxxxxx, XX 00000
Xxxxxx, Xxxxx 11,000 11,000 1,372.364 1,372 1,372
00 Xxxx Xxxxxx Xx #0000, Xxxxxxxxxxxx, XX
00000-0000
Xxxxxxxxxxx, Xxxxx 220 220 27.447 27 27
000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
RMC International 323 323 40.298 40 40
Xxxx 000, Xxxx Xxxx Xxxx, Xxxxxxxx-Xxxx
Xxxxx, Xxxxx
Xxxxxx, Xxx 240 240 29.942 29 29
00 Xxxxxxxxx Xx, Xxx Xxxxxx, XX 00000
Xxxxxxx Xxxxxxxx 11 11 1.372 1 0
000 Xxxxxx Xx Xxxxx, Xxxxxxxxxx, Xx 00000
Xxxx, Xxxx 25 25 3.119 3 0
000 Xxxxx Xxxxx Xx, Xxxxxxxxx, XX 00000
Sealed Air Corporation 79 79 9.856 9 0
0000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000
Sentrol Inc. 70 70 8.733 8 0
00000 XX Xxxxxxx Xxxx, Xxxxxxxx, XX 00000
92
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PAGE 18
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Set Point Inc. 199 199 24,827 24 24
X.X. Xxx 00000, Xxxxxxxx, XX 00000
Xxxxx Xxxxxxx 460 460 57.390 57 57
0000 Xxxxx Xx Xxxxx, Xxxxxxxxxx, XX 00000
Sharpman, Shanman, Xxxxx 1,421 1,421 177.285 177 177
000 Xxxxxxxxx Xxx, Xxx Xxxx, XX 00000
Shaws Restaurant 47 47 5.864 5 0
000 Xxxxx Xxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxx, X.X. 18 18 2.246 2 0
00 Xxxx Xxxxx Xx, Xxx Xxxxx Xxxxxxx
Xxxxxx X0X 0XX
Xxxxxxxx, Xxx 48 48 5.988 5 0
0000 Xxxxxxx Xx Xxx 000, Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx 325 325 40.547 40 40
000 Xxxx Xxxxxxx, Xxxxxxxx, XX 00000
Ship N Out 153 153 19.088 19 00
Xxxx Xx. 0, Xxxxx 00, Xxxxxxxx, XX 00000
Xxxxxxx, Xxxxx 228 228 28.445 28 28
000 Xxxxxxxx Xxxxxx, Xxxxxxxxx XX 00000
Xxxxxx 00 00 1.996 1 0
0000 Xxxx Xxxx #000, Xxxxxxx Xxxxxxx, XX 00000
Slaters Hardware 23 23 2.869 2 0
0000 Xxxxx Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Xxxxx Electronics Inc. 283 283 35.307 35 35
0000 Xxxxxxxxx Xx, Xxxxxxxxx, XX 00000
Solid State 242 242 30.192 30 30
000 Xxxxxxxx Xx, Xxxxxxxxxxx, XX 00000
Xxxxxx & Assoc. 1,563 1,563 195.000 195 195
X.X. Xxx 00000, Xxxxxxxxxx, XX 00000
93
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***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxxxx, Mr. and Xxx. Xxxxxxx 17,600 17,600 2,195.783 2,195 2,195
0000 Xxxxxxxx Xxx X Xx, Xxxxxxxxxxxx, XX 00000
Stellar Systems 35 35 4.367 4 0
0000 Xxxxxxx Xxxxx, Xxxxx Xxxxx, XX 00000
Xxxxxxxxxx, Xxxxxx 646 646 80.595 80 80
0000 Xxxx Xxxx Xxx, Xxxxxxxxx, XX 00000
Xxxxxx Vacuum 49 49 6.113 6 0
X.X. Xxx 0000 X-0000, Xxxxxxxxxxxx, XX 00000
Storm Products 39 39 4.866 4 0
000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000
Xxxxxx, Xxxx 102 102 12.726 12 12
000 Xxxx Xxxxxxxx, Xxx. X, Xxx Xxxxxxxxx,
XX 00000
Xxxxxx-Xxxxxxxx Co. Inc. 9 9 1.123 1 0
0000 Xxxx Xxxxx Xx, Xxxxxx, XX 00000
Summit Industries, Inc. 22 22 2.745 2 0
0000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000
Xxxxxx, Xxxxx 301 301 37.553 37 37
0000-X Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
Switching System 378 378 47.159 47 47
000 Xxxxxx Xxx, Xxxxxxxxx, XX 00000
S.L. Corporation 2,612 2,612 325.874 325 325
000 Xxxxx Xxxxx Xxxx, Xxxxx Xxxxxx, XX 00000
X.X. Xxxxxxxx Co. 11 11 1.372 1 0
X.X. Xxx 000, Xxxxxxx Xxxxx, XX 00000
TTI 14 14 1.747 1 0
0000 Xxxxxxxx Xx #000, Xxxxxxxxxxxx, XX 00000
Xxxxxx Chevrolet Leasing 105 105 13.100 13 13
X.X. Xxx 00, Xxxxxxxxx, XX 00000
Tech Fab International 1,106 1,106 137.985 137 000
00 Xxxx Xxx. 00 Xxxxx Xxxxx, Xxx Xxxxx,
Xxxxx 110 019
94
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 20
***************************************************************************
* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Teletronix Systems 2,123 2,123 264.866 264 264
X.X. Xxx 0000, Xxx Xxxxxx, XX 00000
Television Broadcast 92 92 11.478 11 11
0 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
Texas Microsystems Inc. 2,993 2,993 373.408 373 373
X.X. Xxx 000000, Xxxxxxx, XX 00000
Texwipe Company 28 28 3.493 3 0
000 Xxxx Xxxxxxxx Xxx, Xxxxx Xxxxxx, XX 00000
Thal-More Associates 84 84 10.480 10 0
X.X. Xxx 000, Xxxxxx, XX 00000
Therm-O-Disc 171 171 21.334 21 21
0000 Xxxxx Xxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxx Publishing Co. 75 75 9.357 9 0
Xxx Xxxx Xxxxx, Xxx Xxxx, XX 00000
Xxxxxx, Xxxx & Kayden 350 350 43.666 43 43
000 Xxxxxxxx Xxxx XX #000, Xxxxxxx, XX 00000
Xxxxxxxx Electric Supplies 575 575 71.737 71 71
0000 Xxxxxxxx Xxx, Xxxxxxxx, XX 00000
Thorn Automated Systems 914 914 114.031 114 114
000 Xxxxxx Xxxxx, Xxxxxxxx, XX 00000
Xxxxx, Xxxxxxx 239 239 29.818 29 29
000 Xxx Xx, Xxxxxx, XX 00000
Thyssen Plastic Products Div. 370 370 46.161 46 46
000 Xxxxxxx Xxxxxxxxxx XX XX, Xxxxxxxx, XX
00000-0000
Tiffen Manufacturing 313 313 39.050 39 39
00 Xxxxx Xxx, Xxxxxxxxx, XX 00000
Xxxxxxxx, Xxxxxxx X. 275,124 30,000 305,124 38,067.387 38,067 38,067
0000 Xxxxxxx Xxxxx Xx, Xxxxxxxx, XX 00000
95
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 21
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* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
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Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Trans World Airlines Inc. 9,892 9,892 1,234.130 1,234 1,234
Xxxx XX 00000, Xxxxx Xxxxxxxx, XX 00000
Transcat 304 304 37.927 37 37
X.X. Xxx 00000, Xxxxxxxxx, XX 00000-0000
Tri-Angle Security Inc. 1,987 1,987 247.899 247 247
000 Xxxx Xxxxxx Xx, Xxxxx, XX 00000
TN Xxxx Inc. Div. of COW Industries 2,266 2,266 282.707 282 282
0000 Xxxxxxxx Xxx, Xxxxxxxx, XX 00000-0000
U-Line 26 26 3.244 3 0
X.X. Xxx 000, Xxxx Xxxxx, XX 00000
Ultrak Inc. 392 392 48.906 48 48
0000 Xxxxxxxxxx Xx #0000X, Xxxxxxxxxx, XX
00000-0000
United Parcel Service 1,788 1,788 223.972 223 223
X.X. Xxx 0000, Xxxxxxxx, XX 00000
Universal Processing 1 1 0.125 0 0
000 Xxxxxx Xx, Xxxxxxxx, XX 00000
Xxxxxxx, Xxxxx 134 134 16.718 16 16
0000 Xxxxxxx Xx, Xxxxxxxxx, XX 00000
Victroeen Inc. 131 131 16.344 16 16
0000 Xxxxxxx Xx, Xxxxxxxxx, XX 00000
Vulcan Binder 539 539 67.246 67 67
X.X. Xxx 00, Xxxxxxx, XX 00000
WMI 26 26 3.244 3 0
0000 Xxxxxxxx-Xxxx Xx, Xxxxxxxxx, XX 00000
Xxxxxxxxx Security, Inc. 24 24 2.994 2 0
0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000
Wholesale Supply 71 71 8.858 8 0
X.X. Xxx 00000, Xxxxxxxxx, XX 00000
Xxxxxxx Xxxxx Co. Inc. 1,189 1,189 148.340 148 148
0000 Xxxxxx Xx, Xxxxxxxx, XX 00000
96
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PAGE 22
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* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Xxxxxx, Xxxxx 125 125 15.595 15 15
00000 Xxxxxxxx Xx, Xxxxxxxxx, XX 00000
Winchester Electronic Sales 123 123 15.346 15 15
0000 Xxxxxxx Xxxxxx Xx, Xxxxxxx, XX 00000
Xxxxx, Xxxxx 1,354 1,354 168.926 168 168
0000 Xxxxx Xx XX, Xxxxxxxx Xxxx, XX 00000
Xxxxx, Xxxxx 127 127 15.845 15 15
0000 X Xxxx Xxx Xxx, Xxxxxxxxx, XX 00000
Xxxxx, Xxxxxx X. 19,250 19,250 2,401.637 2,401 2,401
0000 X Xxxx Xxx Xxx, Xxxxxxxxx, XX 00000
Xxxxx, Xxxxx X. 9,500 9,500 1,185.224 1,185 1,185
000 0xx Xxx, Xxxxxxxxx, XX 00000
Xxxxx, Xxxxxxx X. 19,250 19,250 2,401.637 2,401 2,401
0000 X Xxxx Xxx Xxx, Xxxxxxxxx, XX 00000
Xxxxx, Xxxxx Xxx 5,500 5,500 686.182 686 686
0000 X Xxxx Xxx Xxx, Xxxxxxxxx, XX 00000
Xxxxxx, Dr. and Xxx. Xxxx 13,200 13,200 1,646.837 1,646 1,646
0000 X. Xxxxxx Xxxx Xx 000X, Xxxxxxxxx,
XX 00000
Wygum X. Xxxxxx 64 64 7.895 7 0
0000 Xxxxxx Xxxx Xx XX, Xxxxxx, XX 00000-0000
X.X. Xxxx Co. Inc. 317 317 39.549 39 39
X.X. Xxx 0, Xxxxxxxxxxx, XX 00000
Xerox Corporation 1,295 1,295 161.565 161 161
00000 Xxxxx Xxxx Xx, Xxxxxx, XX 00000
Xxxxx, Xxxxxxx 357 357 44.539 00 00
XX #0, Xxxxxxxxx, XX 00000
Xxxxxxx, Xxxxxx 681 681 34.962 84 84
000 Xxxxx Xxxxx Xx, Xxx Xxxxx, XX 00000
Xxxxxxxxx, Xxxxxx 18,295 18,295 2,282.491 2,282 2,282
000 Xxxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000
97
DIAMOND ELECTRONICS, INC SHAREHOLDER LIST - WITH CONVERSION TO ULTRAK STOCK:
PAGE 23
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* *
* ASSUMPTIONS: 1.] 600,000 ULTRAK SHARES EXCHANGED *
* *
***************************************************************************
Ultrak # of
Diamond # of Ultrak # of Ultrak # of Shares
# of Shares Shares after Shares Prelim. Shares Prelim. Final after
Diamond Options/ Options/ B/4 Fractional after Fractional 10 and Less
Shareholder Name # of Shares Warrants to Warrants Shares Shares Shares
Address/City/State/Zip @ 12/31/94 Exercise Exercised Eliminated Eliminated Cashed Out
----------------------------------------- ----------- ----------- ------------ -------------- ---------------- ----------
Subtotal before options + warrants 4,706,326 102,893 4,809,219 600,000.001 599,833 599,339
Options - R Xxxxxxxx 30,000 99.89%
Warrants Issued - Rights offering 97,786
Warrants called or expired (24,893)
--------
Subtotal after options + warrants 4,809,219
Number of Ultrak Shares to Issue 600,000
Conversion Factor 8.015365
98
SCHEDULE 2.08
TAXES:
Diamond's 1994 corporate income and/or franchise tax returns for Ohio, Texas,
and West Virginia are due for filing in May 1995.
Diamond's corporate federal income tax return for 1994 was not filed on March
15, 1995, but an extension was filed on that date.
Diamond's corporate income tax returns for 1994 for the states of Pennsylvania,
Maryland, and the city of Lancaster, Ohio were not filed on March 15, 1995, but
extensions were filed on that date.
As of January 1, 1995, Diamond had available deferred tax assets totaling
$316,090 and available unused operating loss carry-fowards of $0.
99
SCHEDULE 2.09
LIABILITIES AND OBLIGATIONS OF DIAMOND
None.
100
SCHEDULE 2.10
EMPLOYEE BENEFIT PLANS AND ARRANGEMENTS; ERISA:
Diamond sponsors a 401(k) salary savings plan covering all employees meeting
certain eligibility requirements. Under the plan, Diamond is required to
contribute amounts equal to 10% of the employee's first 4% of voluntary
contributions. Diamond's contributions to the plan were $8,429 and $7,481
during 1994 and 1993, respectively.
Diamond has a stock option plan, under which certain employees have been
granted options to purchase shares of the company's common stock at a price
equal to the market price of the stock at the date of the grant. As of January
1, 1995, 30,000 such options were outstanding and exercisable.
101
SCHEDULE 2.11
ABSENCE OF CERTAIN CHANGES:
1. Diamond has made the following capital expenditure commitments
in excess of $10,000 during the period January 1, 1995 through
March 31, 1995.
- Electromagnetic emission testing system for $16,671.
- SmartScan pro demo system for $23,328.
Total capital expenditure commitments for the period of
January 1, 1995 through March 31, 1995 were $72,874.
2. Diamond previously formed a subsidiary associated with the
acquisition of part of Alpha Electronics, Inc. In late 1994,
Alpha CCTV, Inc. terminated its lease of its San Antonio
office facility. This subsidiary, Alpha CCTV, Inc. was
inactive as of March 31, 1995.
3. Diamond's primary banking relationship is with Society Bank.
4. Certain foreign filings on Diamond's patents were permitted to
lapse during 1991 and 1992 due to a lack of funds to file and
maintain such foreign filings.
5. Executive management bonuses totaling $54,000 were paid during
March, 1995 which represent amounts authorized and accrued.
$4,500 was paid to an affiliate, Xxxxxxxxx Investment Capital
Corporation, during the first quarter of 1995 for headquarter
expenses. $6,435 was paid to an affiliate, Merchants Travel,
Inc., during the first quarter of 1995 for travel expenses.
Travel advances to various Diamond employees were made during
the first quarter of 1995 in the ordinary course of business.
Outside directors fees totaling $27,000 were made during
March, 1995 to individuals who were also stockholders. During
March, 1995, Diamond's Board of Directors authorized a special
bonus of $16,800 to executive management, contingent upon the
culmination of the proposed Diamond-Ultrak merger.
6. Diamond Patent #1,189,956, "Dark Current Compensating Lens
Control," was allowed to lapse in 1994 as the patent was not
in current use and was determined by management to be of
little or no value to Diamond.
102
SCHEDULE 2.14
PATENTS, TRADEMARKS, COPYRIGHTS, ETC.:
Diamond abandoned its opportunity to make foreign filings on Diamond patents in
1991 and 1992 during the pendency of Diamond's bankruptcy. Diamond Patent
#1,189,956, "Dark Current Compensating Lease Control," was allowed to lapse in
1994 as the patent was not in current use and was determined by management to
be of little or no value to Diamond.
Diamond has discontinued the use of two trademarks. Diamond's "GOLD DOME"
trademark was contested by a Buffalo, New York bank in November of 1991. On
advice of Diamond's counsel, the company discontinued use of the GOLD DOME
trademark.
Diamond applied for a trademark for "Diamond Vision" which was challenged by
Mitsubishi. Diamond's management determined it was in the best interest of the
company to abandon the application for the trademark.
Diamond's "SmartScan" trademark is also being used by the Peabody Engineering
Corporation in association with one of their flame scanner products. Peabody
Engineering Corporation's counsel has sent the Corporation a copy of its
trademark registration and informed Diamond that it was infringing the Peabody
trademark. The Peabody Engineering Corporation trademark registration is dated
ten months earlier than Diamond's and Peabody Engineering Corporation's first
use of the trademark precedes Diamond's by approximately two months. Diamond
has continued to use the trademark because the company's products do not
compete.
103
SCHEDULE 2.16(c)
DISCRIMINATION CHARGES
LABOR RELATIONS:
On January 17, 1995, Diamond received notice from the Ohio Civil Rights
Commission that the company was being accused of unlawful discriminatory
practices under Section 4112 of the Ohio Revised Code. Diamond was asked to
provide its response by no later than February 3, 1995.
On January 25, 1995, Diamond's counsel reviewed the charge and the
Corporation's documentation supporting its decision to release the employee due
to excessive absenteeism.
Diamond counsel then prepared a position statement for the Corporation. It was
counsel's opinion that Diamond had sufficient cause to release the employee due
to excessive absenteeism. The position statement was delivered to the Ohio
Civil Rights Commission on February 3, 1995.
As of April 6, 1995, Diamond has not received a response from the Ohio Civil
Rights Commission regarding its allegations of discriminatory practices under
Section 4112 of the Ohio Revised Code.
104
SCHEDULE 2.17
LITIGATION AND CLAIMS:
Diamond has been notified by The Travelers, the company's group insurance
carrier prior to November, 1991, of their claim against Diamond for non-payment
of premiums of $20,109. The company denies liability for this claim as it is a
pre-petition Chapter 11 debt.
The Travelers has hired counsel who is currently negotiating with Diamond on
The Travelers behalf to resolve the dispute. No provision for any settlement
has been reflected in Diamond's financial statements.
On July 30, 1991, Diamond filed a petition for relief under Chapter 11 of the
Federal Bankruptcy Laws in the United States Bankruptcy Court for the Southern
District of Ohio -- Eastern Division. On December 15, 1992, the Bankruptcy
Court confirmed the company's plan of reorganization.
105
SCHEDULE 2.20
Since January 1, 1995, Diamond has paid 5 cents per share as a call premium to
warrant holders pursuant to the call of outstanding warrants. Information
regarding any capital stock distributions, payments, and dividends declared,
paid or distributed by Diamond during its 1994 fiscal year is disclosed in the
Diamond Financial Statements.
106
SCHEDULE 2.21
DIAMOND CORPORATE NAME
CORPORATE NAME:
Diamond has authorized the use of the name "Diamond Electric Co." to a firm in
Cleveland doing business in a non-related industry. A Consent for Use of
Similar Name was executed December 9, 1993 between Diamond and the other
company and is attached.
107
SCHEDULE 2.23
CONDITION OF FIXED ASSETS:
Major assets of Diamond that require repair:
1. Pump house roof: Several attempts to patch the roof have
failed.
2. Roof-top air conditioners: The following air conditioner units
require inspection and repair as follows:
(1) - OK (Accounting)
(2) - OK (Executive)
(3) - OK (Marketing)
(4) - OK
(5) - OK
(6) - OK
(7) - OK
(8) - OK
(9) - Not operating
(10) - Not operating
(11) - Needs inspection
(12) - Needs inspection (Xxxxxx)
(13) - Needs inspection (Stock)
(14) - Not operating (Dock)
(15) - Needs inspection for leak
(16) - Needs freon
(17) - Needs compressors (Dome)
(18) - OK
(19) - OK
3. Main power switch: Requires either total replacement or repair.
4. Gutters and downspouts: Needs selective replacing.
5. Parking lot: Should be patched and sealed.
6. Water tank: Needs painting due to rust in areas.
7. Fire hydrant in front of building: Needs repaired. Water flows
up from base when water is turned on.
108
SCHEDULE 3.02
SHARES OWNED OF RECORD AND BENEFICIALLY BY SIGNING SHAREHOLDERS:
Xxxxxxx X. Xxxxxxxx 305,124
Xxxx X. Xxxxxxxxx 380,366
Xxxxxx X. Xxxxxx 367,475
H. Xxxxxxx Xxxxxxx 634,801
Xxxxxxx Xxxxxxxx, III 653,120
Xxxxxxxx Xxxxxxxxx 637,637
109
Schedule 4.08
CAPITAL EXPENDITURES OF ULTRAK
Ultrak's capital expenditures since December 31, 1994 exceed
$150,000.00 (Ultrak's capital expenditures since December 31, 1994 amounted to
$200,967 through March 31, 1995).
110
ANNEX B
OHIO REVISED CODE Section 1.701.85
Dissenting shareholder's demand for fair cash value of shares.
(A)(1) A shareholder of a domestic corporation is entitled to relief
as a dissenting shareholder in respect of the proposals described in Sections
1701.74, 1701.76, and 1701.84 of the Revised Code, only in compliance with this
section.
(2) If the proposal must be submitted to the shareholders of the
corporation involved, the dissenting shareholder shall be a record holder of
the shares of the corporation as to which he seeks relief as of the date fixed
for the determination of shareholders entitled to notice of a meeting of the
shareholders at which the proposal is to be submitted, and such shares shall not
have been voted in favor of the proposal. Not later than ten days after the
date on which the vote on the proposal was taken at the meeting of the
shareholders, the dissenting shareholder shall deliver to the corporation a
written demand for payment to him of the fair cash value of the shares as to
which he seeks relief, which demand shall state his address, the number and
class of such shares, and the amount claimed by him as the fair cash value of
the shares.
(3) The dissenting shareholder entitled to relief under division
(C) of Section 1701.84 of the Revised Code in the case of a merger pursuant to
Section 1701.80 of the Revised Code and a dissenting shareholder entitled to
relief under division (E) of Section 1701.84 of the Revised Code in the case of
a merger pursuant to Section 1701.801 [1701.80.1] of the Revised Code shall be
a record holder of the shares of the corporation as to which he seeks relief as
of the date on which the agreement of merger was adopted by the directors of
that corporation. Within twenty days after he has been sent the notice provided
in Section 1701.80 or 1701.801 [1701.80.1] of the Revised Code, the dissenting
shareholder shall deliver to the corporation a written demand for payment with
the same information as that provided for in division (A)(2) of this section.
(4) In the case of a merger or consolidation, a demand served on
the constituent corporation involved constitutes service on the surviving or
the new entity whether served before, on, or after the effective date of
the merger or consolidation.
(5) If the corporation sends to the dissenting shareholder, at the
address specified in his demand, a request for the certificates representing
the shares as to which he seeks relief, the dissenting shareholder, within
fifteen days from the date of the sending of such request, shall deliver to the
corporation the certificates requested so that the corporation may forthwith
endorse on them a legend to the effect that demand for the fair cash value of
such shares has been made. The corporation promptly shall return such endorsed
certificates to the dissenting shareholder. A dissenting shareholder's failure
to deliver such certificates terminates his rights as a dissenting shareholder,
at the option of the corporation, exercised by written notice sent to the
dissenting shareholder within twenty days after the lapse of the fifteen-day
period, unless a court for good cause shown otherwise directs. If shares
represented by a certificate on which such a legend has been endorsed are
transferred, each new certificate issued for them shall bear a similar legend,
together with the name of the original dissenting holder of such shares. Upon
receiving a demand for payment from a dissenting shareholder who is the record
holder of uncertificated securities, the corporation shall make an appropriate
notation of the demand for payment in its shareholder records. If
uncertificated shares for which payment has been demanded are to be
transferred, any new certificate issued for the shares shall bear the legend
required for certificated securities as provided in this paragraph. A
transferee of the shares so endorsed, or of uncertificated securities where
such notation has been made, acquires only such rights in the corporation as
the original dissenting holder of such shares had immediately after the service
of a demand for payment of the fair cash value of the shares. A request under
this paragraph by the corporation is not an admission by the corporation that
the shareholder is entitled to relief under this section.
(B) Unless the corporation and the dissenting shareholder have come
to an agreement on the fair cash value per share of the shares as to which the
dissenting shareholder seeks relief, the dissenting shareholder or the
corporation, which in case of a merger or consolidation may be the surviving or
new entity, within three months of the service of the demand by the dissenting
shareholder, may file a complaint in the court of common pleas of the
111
county in which the principal office of the corporation that issued
the shares is located, or was located at the time when the proposal was
adopted by the shareholders of the corporation, or, if the proposal was not
required to be submitted to the shareholders, was approved by the directors.
Other dissenting shareholders, within that three-month period, may join as
plaintiffs, or may be joined as defendants in any such proceeding, and any two
or more such proceedings may be consolidated. The complaint shall contain a
brief statement of the facts, including the vote and the facts entitling the
dissenting shareholder to the relief demanded. No answer to such a complaint is
required. Upon the filing of such a complaint, the court, on motion of the
petitioner, shall enter an order fixing a date for a hearing on the complaint
and requiring that a copy of the complaint and a notice of the filing and of
the date for hearing be given to the respondent or defendant in the manner in
which summons is required to be served or substituted service is required to be
made in other cases. On the day fixed for the hearing on the complaint or any
adjournment of it, the court shall determine from the complaint and from such
evidence as is submitted by either party whether the dissenting shareholder is
entitled to be paid the fair cash value of any shares and, if so, the number
and class of such shares. If the court finds that the dissenting shareholder is
so entitled, the court may appoint one or more persons as appraisers to receive
evidence and to recommend a decision on the amount of the fair cash value. The
appraisers have such power and authority as is specified in the order of their
appointment. The court thereupon shall make a finding as to the fair cash value
of a share, and shall render judgment against the corporation for payment of
it, with interest at such rate and from such dated as the court considers
equitable. The costs of the proceeding, including reasonable compensation to
the appraisers to be fixed by the court, shall be assessed or apportioned as
the court considers equitable. The proceeding is a special proceeding, and
final orders in it may be vacated, modified, or reversed on appeal pursuant to
the rules of appellate procedure and, to the extent not in conflict with those
rules, Chapter 2505 of the Revised Code. If, during the pendency of any
proceeding instituted under this section, a suit or proceeding is or has been
instituted to enjoin or otherwise to prevent the carrying out of the action as
to which the shareholder has dissented, the proceeding instituted under this
section shall be stayed until the final determination of the other suit or
proceeding. Unless any provision in division (D) of this section is applicable,
the fair cash value of the shares that is agreed upon by the parties or fixed
under this section shall be paid within thirty days after the date of final
determination of such value under this division, the effective date of the
amendment to the articles, or the consummation of the other action involved,
whichever occurs last. Upon the occurrence of the last such event, payment
shall be made immediately to a holder of uncertificated securities entitled to
such payment. In the case of holders of shares represented by certificates,
payment shall be made only upon and simultaneously with the surrender to the
corporation of the certificates representing the shares for which the payment
is made.
(C) If the proposal was required to be submitted to the
shareholders of the corporation, fair cash value as to those shareholders shall
be determined as of the day prior to the day on which the vote by the
shareholders was taken and, in the case of a merger pursuant to Section 1701.80
or 1701.801 [1701.80.1] of the Revised Code, fair cash value as to the
shareholders of a constituent subsidiary corporation shall be determined as of
the day before the adoption of the agreement of merger by the directors of the
particular subsidiary corporation. The fair cash value of a share for the
purposes of this section is the amount that a willing seller who is under no
compulsion to sell, would be willing to accept and that a willing buyer who
is under no compulsion to purchase would be willing to pay, but in no event
shall the fair cash value of a share exceed the amount specified in the demand
of the particular shareholder. In computing such fair cash value, any
appreciation or depreciation in market value resulting from the proposal
submitted to the directors or to the shareholders shall be excluded.
(D)(1) The right and obligation of a dissenting shareholder to receive
such fair cash value and to sell such shares as to which he seeks relief, and
the right and obligation of the corporation to purchase such shares and to pay
the fair cash value of them terminates if any of the following applies:
(a) The shareholder has not complied with this section,
unless the corporation by its directors waives such failure;
(b) The corporation abandons the action involved, or is
finally enjoined or prevented from carrying out, or the shareholders rescind
their adoption of the action involved;
112
(c) The dissenting shareholder withdraws his demand, with
the consent of the corporation by its directors;
(d) The corporation and the dissenting shareholder have not
come to an agreement as to the fair cash value per share, and neither the
shareholder nor the corporation has filed or joined in a complaint under
division (B) of this section within the period provided in that Division.
(2) For purposes of division (D)(1) of this section, if the merger
or consolidation has become effective and the surviving or new entity is not a
corporation, action required to be taken by the directors of the corporation
shall be taken by the general partners of a surviving or new partnership or the
comparable representatives of any other surviving or new entity.
(E) From the time of the dissenting shareholders giving of the
demand until either the termination of the rights and obligations arising from
it or the purchase of the shares by the corporation, all other rights accruing
from such shares, including voting or dividend or distribution rights, are
suspended. If during the suspension, any dividend or distribution is paid in
money upon shares of such class or any dividend, distribution, or interest is
paid in money upon any securities issued in extinguishment of or in
substitution for such shares, an amount equal to the dividend, distribution, or
interest which, except for the suspension, would have been payable upon such
shares or securities, shall be paid to the holder of record as a credit upon
the fair cash value of the shares. If the right to receive fair cash value is
terminated other than by the purchase of the shares by the corporation, all
rights of the holder shall be restored and all distributions which, except for
the suspension, would have been made shall be made to the holder of record of
the shares at the time of termination.
History: 133 v Section 158 (Eff 7-17-70); 135 v Section 158 (Eff 9-30-74); 140
v H 250 (Eff 7-30-84); 140 v Section 283 (Eff 9-20-84); 141 v H 902 (Eff
11-22-86); 141 v H 412 (Eff 3-17-87); 141 v H 428 (Eff 12-23-86); 142 v H 708
(eff 4-19-68); 145 v S 74. Eff 7-1-94.
Analogous to former RC Section 1701.85 (126 v; 412; 130 v Section 121),
repealed 133 v Section 158, eff 7-17-70.
Analogous to former RC Section 1701.85 (126 v 432; 130 v Section 121),
repealed 133 v Section 158, eff 7-17-70.
NOTES:
1986 COMMITTEE COMMENT
Division (A)(3) and Division (C) are amended to include shareholders
entitled to dissenters' rights under new Sec. 1701.84(E) in connection with
margers under new Sec. 1701.801.
1970 COMMITTEE REPORT
Finally, the committee proposes a rather extensively amended section
1701.85, revising the procedures for perfecting the rights of dissenting
shareholders. The time limitations for perfecting the rights have been altered
somewhat (compare old (A)(1) and (2) with new (A)(2) and (3)); the requirement
in division (3) that the court appoint three appraisers has been optional; the
present provision (division (B)) requiring that in certain circumstances the
corporation is bound to pay the amount demanded by the dissenting shareholder
has been omitted; and the procedure to be followed when no agreement has been
reached and neither party has filed suit has been changed (new (D)(4)). The
definition of fair cash value has not been basically changed.
