OPTION AND ESCROW AGREEMENT
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OPTION AND ESCROW AGREEMENT made as of this 18th day of
July, 1995 by and among Firecom, Inc., a New York corporation
(the "Company"), certain shareholders of the Company set forth on
Schedule A attached hereto (individually, the "Shareholder" and
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collectively, the "Shareholders") and Xxxx & Priest LLP (the
"Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Company and the Shareholders have executed
and delivered a stock purchase agreement (the "Stock Purchase
Agreement"), pursuant to which the Company is purchasing an
aggregate of 536,494 shares of common stock, $.01 par value per
share (the "Common Stock"), of the Company from the Shareholders;
WHEREAS, as a condition to the performance of the Stock
Purchase Agreement, the Company and the Sellers desire to provide
the Company with an opportunity to acquire an additional
aggregate of 536,495 shares of Common Stock of the Company held
by them (the "Option Shares"), pursuant to the exercise of a
"call" or "put" option by the Company or the Shareholders,
respectively, subject to the terms and conditions contained
herein; and
WHEREAS, the Company and the Shareholders desire to
appoint Xxxx & Priest LLP as the Escrow Agent with respect to the
Option Shares, and Xxxx & Priest LLP is willing to accept such
appointment subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, the
mutual covenants herein set forth and other good and valuable
consideration, the parties hereto hereby agree as follows:
1. The Put Option. The Company and the Shareholders
--------------
do hereby agree that on September 1, 1998 (the "Option Date"),
each Shareholder, subject to the terms and conditions hereinafter
set forth, shall have the right, but not the obligation, to
require the Company to purchase, in whole or in part, his Option
Shares (the "Put Option") at the purchase price set forth below
herein (the Option Shares to be so purchased by the Company being
referred to herein as "Put Shares").
(a) Put Purchase Price. The per share purchase
------------------
price payable by the Company for each of the Put Shares upon
exercise shall be $1.10 per share.
(b) Exercise of the Put Option; Notice. The
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Shareholder shall exercise his Put Option by written notice to be
mailed by registered mail, return receipt requested, to the
Company by the Option Date, which notice shall specify the number
of Put Shares the Company shall be required to purchase from the
Shareholder. Promptly after receipt of such notice, the Company
shall give written notice to the Shareholder setting forth the
date on which the purchase of the Put Shares shall take place
(the "Closing Date"), which Closing Date shall be not less than
fifteen (15) nor more than sixty (60) days after the Option Date.
The place of purchase of the Put Shares shall be at the offices
of the Escrow Agent.
(c) Payment for the Put Shares. Payment of the
--------------------------
purchase price for the Put Shares shall be delivered to the
Escrow Agent in accordance with the provisions of Section 7
hereof as follows: (i) 50% of the purchase price by certified or
cashier's check or by wire transfer to an account designated by
the Escrow Agent, and (ii) 50% of the purchase price by the
delivery of a subordinated promissory note of the Company in
favor of the Shareholder (the "Option Shares Note"), a form of
which Option Shares Note is attached hereto and made a part
hereof as Exhibit A.
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(d) Condition to Put Option. The exercise of a
-----------------------
Shareholder's Put Option is contingent upon the Company's audited
financial statements for the fiscal year ended April 30, 1998
reflecting (i) a minimum $3,000,000 net worth and (ii) $1,000,000
in after-tax profits net of extraordinary items (the "Financial
Target"). In the event the Company does not achieve the
Financial Target, the Option Date may be deferred at the option
of the Shareholder until September 1, 1999 (the "Deferred Option
Date"); provided, however, that the Company may waive the
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Financial Target requirement upon written notice to the
Shareholders at least thirty (30) days prior to the Option Date,
in which case the Put Option shall expire on the Option Date and
the Shareholders shall not have the option to defer. If the
Company does not achieve its Financial Target as reflected in the
Company's audited financial statements for the fiscal year ended
April 30, 1999, the Put Option shall terminate.
2. The Call Option. The Company and the Shareholders
---------------
do hereby agree that from the date hereof through the Option
Date, the Company, subject to the terms and conditions
hereinafter set forth, shall have the right, but not the
obligation, to purchase, all of the Option Shares, in whole, or
if in part, pro rata among the Shareholders (the "Call Option"),
at the purchase price set forth below (the Option Shares to be so
purchased by the Company being referred to in this Section 2 as
the "Call Shares"). In the event the Put Option is deferred
under Section 1(d) above, the Company shall have the Call Option
through the Deferred Option Date subject to the terms of this
Section 2.
(a) Call Purchase Price. The per share purchase
-------------------
price payable by the Company for each of the Call Shares upon
exercise shall be $1.25 per share.
(b) Exercise of the Call Option; Notice. The
-----------------------------------
Company shall exercise the Call Option by written notice to be
mailed by registered mail, return receipt requested, to the
Shareholders, which notice shall specify the number of Call
Shares the Company shall purchase from the Shareholders and the
Closing Date, which Closing Date shall not be less than fifteen
(15) nor more than sixty (60) days after the date of the written
notice. The place of purchase of the Call Shares shall be at the
offices of the Escrow Agent.
(c) Payment for the Call Shares. Payment of the
---------------------------
purchase price for the Call Shares shall be delivered to the
Escrow Agent in accordance with the provisions of Section 7
hereof as follows: (i) 50% of the purchase price by certified or
cashier's check or by wire transfer to such account designated by
the Escrow Agent, and (ii) 50% of the purchase price by the
delivery of an Option Shares Note in favor of each Shareholder.
3. Put/Call Option Conflict. In the event both the
------------------------
Call Option and the Put Option are mailed, the purchase price for
the Option Shares shall be the average of the purchase price for
the Put Shares and the purchase price for the Call Shares.
4. Condition to Option. Notwithstanding the
-------------------
foregoing, the exercise of the Put or Call Option is conditioned
upon the receipt by the Shareholders of the Company's Annual
Report on Form 10-K (the "Annual Report") for the fiscal year
ended April 30, 1998 on or before August 15, 1998 (or, if
deferred, receipt of the Annual Report for the fiscal year ended
April 30, 1999 on or before August 15, 1999). In the event the
Annual Report is not received by the Shareholders on such date,
the Option Date shall be extended to the date which is fifteen
(15) days after the Shareholders receive the Annual Report.
5. Pledge of Option Shares. The obligations of the
-----------------------
Company under the Notes shall be secured by the Company's pledge
to each of the Shareholders of one-half of the Put or Call Shares
purchased upon exercise of the Put or Call Option, in accordance
with the terms and provisions of a stock pledge agreement among
the Company, the Shareholder and Akabas & Xxxxx as the pledge
agent, substantially in the form attached to the Stock Purchase
Agreement as Exhibit C.
6. Restriction of Sale of Option Shares. The Option
------------------------------------
Shares may not be sold by any Shareholder to any third party
until the Option Date or the Deferred Option Date (subject to
Section 7 below), provided, that the Option Shares may
--------
be sold to a third party in the event of a merger, consolidation,
or sale of substantially all of the assets of the Company.
7. Notice of Transfer; Right of First Refusal.
------------------------------------------
(a) After the Option Date or, if the Financial
Target is not achieved, after the Deferred Option Date, a
Shareholder may sell any or all of his Option Shares to a third
party in a private transaction; provided, however, that in the
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event a Shareholder desires to sell or transfer such Option
Shares within the two year period after the Option Date or, if
applicable, the Deferred Option Date, such Shareholder agrees to
give written notice to the Company before transferring the Option
Shares of the Shareholder's intention to do so, which notice
shall also specify the purchase price offered for the Option
Shares. Within fifteen (15) days of receipt of such notice, the
Company shall have the right to purchase for cash at the purchase
price specified by the Shareholder as aforesaid, the Option
Shares; provided, that the Company provides to the Shareholders
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an unconditional commitment letter setting forth the terms of the
purchase satisfactory to the Shareholders within fifteen (15)
days of the Company's receipt of notice of the Shareholder's
intent to transfer, and provided, further, that the Company
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closes such purchase within forty-five (45) days thereafter.
(b) After the Option Date or, if the Financial
Target is not achieved, after the Deferred Option Date, a
Shareholder may sell any or all of his Option Shares in the open
market; provided, however, that in the event a Shareholder
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desires to sell such Options Shares in the open market within the
two-year period after the Option Date or, if applicable, the
Deferred Option Date, the Shareholder agrees to give written
notice to the Company of such Shareholder's intention to sell the
Option Shares. Within fifteen (15) days of receipt of such
notice, the Company shall have the right to purchase such Option
Shares at a purchase price equal to the highest five-day average
of the closing bid and asked prices of the Company's Common Stock
for any five (5) trading days within the fifteen (15) day period
after the date of receipt by the Company of the Shareholders's
intention to sell his Option Shares in the open market. If the
Company elects not to purchase the Option Shares during such
fifteen (15) day period, the Shareholder may sell his Option
Shares in the open market at any time during the following sixty
(60) day period. At the end of such sixty (60) day period, any
subsequent sale or transfer of any Option Shares shall be subject
to this Section 7.
(c) Notwithstanding the foregoing, the provisions
of this Section 7 shall not apply to any sales or transfers by a
Shareholder to a third party or on the open market of amounts
less than 50,000 Option Shares within any thirty (30) day period.
8. Voting Rights. Upon execution of this Agreement,
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the Shareholders shall deliver to the Company irrevocable proxies
to permit Mr. Xxxx Xxxxxx, Chairman of the Company, to vote the
Option Shares until the expiration of the two-year right-of-
first-refusal period set forth in Section 7 above, or until such
date the Option Shares are otherwise sold or transferred in
accordance with the terms of this Agreement, whichever is
earlier. Notwithstanding the foregoing, the proxies conferred on
Xx. Xxxxxx pursuant to this Section 8 shall be suspended upon the
occurrence of an Event of Default as defined in the Notes,
provided, that such proxies shall be reinstated upon cure of such
default. A form of proxy is attached hereto and made a part
hereof as Exhibit B.
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9. Compensation of Xx. Xxxxxx. The Company hereby
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agrees that Xx. Xxxxxx' compensation (including any cash bonuses,
cash compensation or non-cash compensation which is accounted for
on a current basis) from the Company as provided in his
employment agreement with the Company shall not be increased
above levels set forth in the employment agreement for the
duration of the Put and Call Option terms provided herein;
provided, that Xx. Xxxxxx'x salary may be increased in accordance
with the annual percentage increase in the Consumer Price Index
for Urban Wage Earners and Clerical Workers as published by the
U.S. Labor Department Bureau of Labor Statistics.
10. Dividends, Redemptions. During the Put and Call
----------------------
Option terms provided herein, the Company shall not pay any
dividends or conduct any redemption with respect to the Company's
capital stock if the effect of such payment of dividends or
redemption would be to reduce the net worth of the Company to an
amount below $3,600,000 (the "Threshold"). Notwithstanding the
foregoing, the Threshold shall be reduced dollar for dollar to
the extent that the Company, in its sole discretion, changes the
definition of "Financial Target" herein to provide for a net
worth requirement of less than $3,000,000 (but in no event less
than $2,000,000), so that after giving effect to any dividend
payment or a redemption, the Put or Call Option could still be
exercised. In any event, no dividends shall be paid or
redemptions made while any obligation to one of the Shareholders
is in default.
11. Adjustments. In the event of a stock dividend,
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stock split, share combination, exchange of shares, recapitali-
zation, merger, consolidation, acquisition or disposition of
property or shares, reorganization, liquidation or other similar
change or transaction of or by the Company, the parties hereto
shall make such equitable and proportionate adjustment of the
number or class of shares then covered by the Option granted
hereunder, or of the option price, or both, as shall be necessary
to give proper effect to such event so that (i) the same
aggregate purchase price that applies to an exercise of the Put
Option for all of the Option Shares shall apply to the exercise
of the Put Option for all of the Option Shares and/or (as the
case may be) all other securities received through such change or
transaction in respect of the Option Shares (collectively, the
"Option Securities"), (ii) the same aggregate purchase price that
applies to an exercise of the Call Option for all of the Option
Shares shall apply to the exercise of the Call Option for all of
the Option Securities, and (iii) with respect to any partial
exercise of the Put Option and/or the Call Option on the Option
Securities, the aggregate purchase price shall be equal to the
aggregate purchase price for a full exercise multiplied by the
fraction of the Option Securities with respect to which the Put
Option or the Call Option, as the case may be, shall be
exercised.
12. Escrow of the Option Shares.
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(a) Contemporaneously with the execution hereof,
the Shareholders shall deliver in escrow to the Escrow Agent,
certificates evidencing the Option Shares, duly endorsed in blank
or accompanied by blank stock powers signed by the Shareholders.
The Escrow Agent hereby acknowledges receipt of such
certificates.
(b) In the event the Put or Call Option is
exercised, notice of such exercise shall be delivered to the
Escrow Agent by the Company and shall (i) state the election to
exercise the Put or Call Option and the number of Option Shares
in respect of which it is being exercised, (ii) be signed by the
Company or its permitted successor or assign and, if the Option
is being exercised by any person or persons other than the
Company, be accompanied by proof of the right of such person or
persons to exercise the Option, and (iii) specify a Closing Date
and time. The Closing Date shall be not more than five (5) days
from the date that the notice is delivered to the Escrow Agent,
unless another date is agreed upon by the Company, the
Shareholders and the Escrow Agent. On the Closing Date, the
purchase price for the Put or Call Shares shall be delivered to
the Escrow Agent by the Company in the manner set forth in
Section 1(c) or 2(c) above (collectively, the "Escrow Funds").
If the Call Option is exercised in part, it shall be exercised
pro rata from each Shareholder according to the relative Option
Share ownership of each unless the Shareholders agree otherwise
and so notify the Company prior to 12:00 noon on the business day
prior to the Closing Date. The Escrow Agent shall then (i)
deliver the Escrow Funds to the Shareholder(s), (ii) deliver to
the Company the certificate(s) representing the Option Shares
exercised under the Put or Call Option, and (iii) deliver to the
Shareholder(s) the certificate(s) representing that portion of
the Option Shares, if any, as to which the Option was not
exercised. In the event the Put or Call Option is not exercised
on or by the Option Date, or, if applicable, the Deferred Option
Date, the Escrow Agent shall return to the Shareholders their
respective Option Shares, and all of the Escrow Agent's
obligations hereunder shall cease.
(c) The Escrow Agent shall be under no duty to
give the property held hereunder any greater degree of care than
it gives its own similar property. The obligations and duties of
the Escrow Agent in connection herewith are confined to those
specifically enumerated herein, and the Escrow Agent shall not be
liable or responsible for any act or failure to act on its part
except for its own willful misconduct. The duties of the Escrow
Agent hereunder shall be limited to the safekeeping of the
certificates representing the Option Shares and the Escrow Funds
and the disposition described herein, and no implied duties or
obligations shall be imposed upon the Escrow Agent. The Escrow
Agent may act or refrain from acting in respect to any matter
referred to herein in full reliance upon, and by and with the
advice of counsel, and shall be fully protected and released as
to any matter on which it shall have acted or refrained from
acting upon the advice of such counsel. The Escrow Agent may
rely or act upon orders or directions, instruments or signatures
believed by it to be genuine and may assume that any person
purporting to give any written notice, advice or instruction in
connection therewith has been duly authorized to do so. The
Escrow Agent shall not be required to institute or defend any
action or legal proceeding involving the terms and conditions
contained herein. For all payments and deliveries made by the
Escrow Agent in accordance with the provisions hereof, the Escrow
Agent shall have full release, discharge and acquittance and
shall not be subject to any claim on the part of any persons
beneficially interested hereunder. The Company and each of the
Shareholders, jointly and severally, shall indemnify and hold
harmless the Escrow Agent from any and all claims, liabilities,
damages, costs and expenses (including attorneys' fees) that
arise as a result of any disputes among the parties hereto. In
the event the Escrow Agent becomes involved in litigation
concerning the terms and conditions contained herein, the Company
and each of the Shareholders, jointly and severally, agree to pay
the Escrow Agent, on demand, its reasonable costs, attorney's
fees, disbursements and expenses in connection with such
litigation. The Escrow Agent shall not be bound by any
modification, amendment, termination, cancellation, rescission or
supersession of the terms and conditions contained herein unless
the same shall be in writing and signed by the Escrow Agent. In
the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with
respect to the Escrow Funds or the certificates representing the
Option Shares, that, in its opinion, are in conflict with any of
the terms and conditions contained herein, the Escrow Agent shall
be entitled to refrain from taking any action other than to keep
safely such funds and certificates until it shall be directed
otherwise by a final judgment or order of a court of competent
jurisdiction. Any such judgment shall be delivered to the Escrow
Agent with the written opinion of counsel setting forth that such
judgment is final and that such court is a court of competent
jurisdiction, and the Escrow Agent shall be fully protected in
relying thereon.
13. Representations, Warranties and Covenants.
-----------------------------------------
(a) Each of the Shareholders represents, warrants
and covenants as follows:
(i) Ownership. The Shareholder is the sole
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record and beneficial owner of his respective Option Shares, and
such Option Shares are owned free and clear of all liens,
pledges, charges, security interests, encumbrances or
restrictions of any kind (except as created by this Agreement),
and upon transfer of any or all of the Option Shares to the
Company by the Escrow Agent pursuant to this Agreement, the
Company shall own such Option Shares free and clear of all liens,
pledges, charges, security interests, encumbrances or
restrictions of any kind.
(ii) Authority. The Shareholder has the legal
---------
capacity to execute, deliver and perform this Agreement, the
other agreements contemplated hereby to which he is a party (the
"Related Agreements"), and to consummate the transactions
contemplated hereby and thereby. This Agreement and the Related
Agreements to which the Shareholder is a party, have been duly
executed by the Shareholder and constitute the legal, valid and
binding obligation of the Shareholder enforceable in accordance
with their respective terms against the Shareholder, except to
the extent that such validity, binding effect and enforceability
may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights
generally from time to time in affect and by general equitable
principles.
(iii) No Restrictions Against Performance.
-----------------------------------
Neither the execution, delivery, or performance of this Agreement
or the Related Agreements to which the Shareholder is a party,
nor the consummation of the transactions contemplated hereby and
thereby will, with or without the giving of notice or the passage
of time, or both, violate any provisions of, conflict with,
result in a breach of, constitute a default under, or result in
the creation or imposition of any lien or condition under (i) any
federal, state or local law, statute, ordinance, regulation or
rule, which is applicable to the Shareholder; (ii) any contract,
indenture, instrument, agreement, mortgage, lease, right or other
obligation or restriction to which the Shareholder is a party or
by which the Shareholder is bound; or (iii) any order, judgment,
writ, injunction, decree, license, franchise, permit or other
authorization of any federal, state or local court, arbitration
tribunal or governmental agency by which the Shareholder is
bound.
(iv) Third-Party and Governmental Consents.
-------------------------------------
No approval, consent, waiver, order or authorization of, or
registration, qualification, declaration or filing with, or
notice to any federal, state or local governmental authority or
other third party is required on the part of the Shareholder in
connection with the execution, delivery and performance of this
Agreement and the Related Agreements to which he is a party.
(v) Review of the Company. The Shareholder
---------------------
has conducted to his satisfaction, his own due diligence review
with respect to the business and financial condition of the
Company, which review will include, among other things, the
Company's most recent annual report on Form 10-K as filed with
the Securities and Exchange Commission (the "SEC") for the fiscal
year ended April 30, 1998 (or 1999 in the case of a deferral)
(the "SEC Documents"). The Shareholder has had the opportunity
to ask questions with respect to the business and financial
condition of the Company and has, to his satisfaction, obtained
all necessary information required by him or her to make the
decision to sell his respective Option Shares pursuant to the
terms and conditions hereof.
(b) The Company shall represent, warrant and
covenant to the Shareholders as follows on the Closing Date:
(i) Due Incorporation. The Company is a
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corporation duly organized, validly existing and in good standing
under the laws of the State of New York. The Company has all
requisite power and authority to own its properties and to
conduct its business as currently conducted, and to execute,
deliver and perform this Agreement and the Related Agreements to
which the Company is a party.
(ii) Authority. The Company's execution,
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delivery, and performance of this Agreement and the Related
Agreements to which it is a party have been duly and validly
authorized by all necessary corporate action on the part of the
Company. This Agreement and the Related Agreements to which the
Company is a party, have been duly executed and delivered by the
Company and constitute the legal, valid and binding obligation of
the Company enforceable in accordance with their terms against
the Company, except to the extent that such validity, binding
effect and enforceability may be limited by applicable
bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally from time to time in effect
and by general equitable principles.
(iii) No Restrictions Against Performance.
-----------------------------------
Except as set forth on Schedule 13(b)(iii)
------------------
attached hereto, neither the execution, delivery, or performance
of this Agreement or the Related Agreements to which the Company
is a party, nor the consummation of the transactions contemplated
hereby or thereby will, with or without the giving of notice or
the passage of time, or both, violate any provisions of, conflict
with, result in a breach of, constitute a default under, or
result in the creation or imposition of any lien or condition
under, (i) the Company's Certificate of Incorporation or By-
Laws, as in effect on the date hereof; (ii) any federal, state or
local law, statute, ordinance, regulation or rule, which is
applicable to the Company; (iii) any contract, indenture,
instrument, agreement, mortgage, lease, right or other obligation
or restriction to which the Company is a party or by which the
Company is bound; or (iv) any order, judgment, writ, injunction,
decree, license, franchise, permit or other authorization of any
federal, state or local court, arbitration tribunal or
governmental agency by which the Company is bound, any of which,
when taken as a whole, would have a material adverse affect on
the Company.
(iv) Third Party and Governmental Consents.
-------------------------------------
Except as set forth on Schedule 13(b)(iv) attached hereto, no
-----------------
approval, consent, waiver, order or authorization of, or
registration, qualification, declaration or filing with, or
notice to any federal, state or local governmental authority or
other third party is required on the part of the Company in
connection with the execution, delivery and performance of this
Agreement and the Related Agreements to which it is a party.
(v) SEC Documents. The SEC Documents
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(including all exhibits and schedules thereto and documents
incorporated by reference therein), as of their respective dates,
did not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein, or necessary
to make statements therein, in light of the circumstances in
which they were made, not misleading. The audited financial
statements and the unaudited interim financial statements of the
Company included or incorporated by reference in the SEC
Documents were prepared in accordance with generally accepted
accounting principles, consistently applied during the periods
involved (except as may be otherwise indicated in the notes
thereto), and fairly present the financial position of the
Company as of the dates thereof and the results of its operations
and changes in financial position for the periods then ended
(subject, in the case of any unaudited interim financial
statements, to normal year-end adjustments).
(vi) Information About the Company. The
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Company has provided the Shareholders with such information the
Shareholders may have requested with respect to the business and
financial condition of the Company.
14. Restrictive Legend. Upon execution of this
------------------
Agreement, the following restrictive legend shall be placed on
the certificates representing the Option Shares:
THE TRANSFERABILITY OF THE SHARES EVIDENCED
BY THIS CERTIFICATE ARE SUBJECT TO THE
PROVISIONS OF AN OPTION AGREEMENT DATED
JULY __, 1995 AMONG FIRECOM, INC. (THE
"COMPANY") AND CERTAIN SHAREHOLDERS OF THE
COMPANY, A COPY OF WHICH IS ON FILE AT THE
OFFICES OF THE COMPANY.
15. Notices. All notices, demands, requests, and
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other communications hereunder shall be in writing and shall be
deemed to have been duly given and shall be effective upon
receipt if delivered by hand, or sent by certified or registered
United States mail, postage prepaid and return receipt requested,
or by prepaid overnight express service. Notices shall be sent
to the parties at the following addresses (or at such other
addresses for a party as shall be specified by like notice;
provided that such notice shall be effective only upon receipt
thereof):
(i) if to any of the Shareholders:
to the appropriate address set forth on
Schedule A attached hereto
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with a copy to:
Akabas & Xxxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
(ii) If to the Company:
Firecom, Inc.
00-00 00xx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Chairman
with a copy to (or if to the Escrow
Agent):
Xxxx & Priest LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxx, Esq.
16. Benefits of Agreement. This Agreement shall inure
--------------------
to the benefit of and be binding upon each permitted successor
and assign of the Company. All obligations imposed upon
Shareholders and all rights granted to Shareholders under this
Agreement shall be binding upon their respective heirs, legal
representatives and successors.
17. Entire Agreement. This Agreement constitutes the
----------------
entire agreement among the parties hereto with respect to the
transactions contemplated herein, and supersedes all prior
agreements and understandings between them as to the subject
matter hereof.
18. Severability. In the event that any one or more
------------
provisions of this Agreement shall be deemed to be illegal or
unenforceable, such illegality or unenforceability shall not
affect the validity and enforceability of the remaining legal and
enforceable provisions hereof, which shall be construed as if
such illegal or unenforceable provision or provisions had not
been inserted.
19. Governing Law. This Agreement will be construed
-------------
and governed in accordance with the laws of the State of New
York.
20. Amendment. This Agreement may only be modified by
---------
a written instrument executed by the parties hereto.
21. Headings. The headings of the sections and
--------
subsections hereof are for convenience of reference only, and
shall not affect the interpretation of any of the provisions
hereof.
22. Execution in Counterparts. This Agreement may be
-------------------------
executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
FIRECOM, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President -
Finance
/s/ Xxxxxxxx May Attorney in Fact
----------------------------------
Xxxxx X. May
/s/ Xxxxxxxx May Attorney in Fact
-----------------------------------
Xxxxxxx X. May
/s/ Xxxxxxxx May
-----------------------------------
Xxxxxxxx X. May
/s/ Xxxxxxx X. May
-----------------------------------
Xxxxxxx X. May
/s/ Xxxxxxxx May Attorney in Fact
-----------------------------------
Xxxxxxxx Xxxxxxx
XXXX & PRIEST LLP
By: /s/ Xxxxxxx Xxxx
-------------------------
SCHEDULE 13(b)(iii)
The performance of this Agreement and the Related
Agreements requires the consent of Xxxxxxx Venture Corp. pursuant
to the terms and conditions of the Note Purchase Agreement dated
March 27, 1989 by and among the Company, Xxxxxxx, and the other
parties thereto.
SCHEDULE 13(b)(iv)
The performance of this Agreement and the Related
Agreements requires the consent of Xxxxxxx Venture Corp. pursuant
to the terms and conditions of the Note Purchase Agreement dated
March 27, 1989 by and among the Company, Xxxxxxx, and the other
parties thereto.
Exhibit A
[FOR PAYMENT OF OPTION SHARES]
FORM OF
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SECURED SUBORDINATED PROMISSORY NOTE
----------------------------------------
$___________________ ____________, 19___
FOR VALUE RECEIVED, the undersigned, FIRECOM, INC., a
New York corporation with principal offices at 00-00 00xx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 ("Maker"), hereby promises to pay to the
order of _________________, an individual residing at
__________________ ("Holder"), in lawful money of the United
States of America and in immediately available funds, the
aggregate amount of _______________________ DOLLARS
($_____________) together with interest thereon calculated from
the date hereof in accordance with the provisions of this Note.
Payments on this Note are to be made at Holder's address stated
above, or such other address as duly designated by Holder, in
lawful money of the United States of America.
This Note is being issued and delivered by Maker to
Holder in accordance with the terms and provisions of the Option
and Escrow Agreement dated as of June __, 1995 (the "Option and
Escrow Agreement"), by and among Maker, Holder and certain other
shareholders of Maker (the "Shareholders"), pursuant to which
[Maker] [Holder] is exercising [his] [her] [its] [put] [call]
option (the "Option") and Maker is purchasing ___________ shares
of Common Stock of Maker from Holder for an aggregate purchase
price of $___________ .
Principal on this Note shall be payable in five (5)
equal, annual installments of $_________ each, commencing on
___________, 19__ [one year from the date of this Note], and
continuing on the ___ day of every ______ thereafter, with a
final payment due on __________ [five years from date of this
Note] (the "Maturity Date").
The unpaid principal amount of this Note shall bear
interest until the Maturity Date at a rate equal to the sum of
(i) the prime rate as quoted in The Wall Street Journal on the
date
-----------------------
hereof plus (ii) three percent (3%) (the "Interest Rate"),
payable monthly commencing on ________, 1995, and continuing on
the same day of every month thereafter, with a final payment due
on the Maturity Date. Interest on the unpaid principal shall be
calculated on the basis of a 360-day year consisting of twelve
months of thirty (30) days each.
All payments due under this Note shall be subordinate
to any indebtedness of Maker to any bank or other financial
institution, including, but not limited to Chemical Bank, in
accordance with the terms and provisions of a subordination
agreement among Chemical Bank, the Company and the Shareholders
(the "Subordination Agreement").
The obligations of Maker under this Note shall be
secured by a pledge by Maker to Holder of shares of Common Stock
of Maker in accordance with the terms and conditions of a stock
pledge agreement of even date herewith among Maker, Holder and
pledge agent.
This Note may be prepaid, in whole or in part, at any
time by Maker without premium or penalty upon ninety (90) days
written notice to Holder of such prepayment.
If any one or more of the following events (each
hereinafter referred to an "Event of Default") shall have
occurred and be continuing, and shall not have been waived or
cured within fifteen (15) days of such an Event of Default: (a)
any payment due on this Note is not paid when due; or (b) default
shall be made in the performance or observance of any covenant,
agreement or provision to be performed or observed by Maker under
this Note or the Option and Escrow Agreement; or (c) (i) Maker
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect
to Maker, or seeking to adjudicate it as bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to its debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for Maker or for all
or any substantial part of its assets, or Maker shall make a
general assignment for the benefit of its creditors; or (ii)
there shall be commenced against Maker any case, proceeding or
other action of a nature referred to in clause (i) above which
(Y) results in the entry of an order for such relief or any such
adjudication or appointment or (Z) remains undismissed,
undischarged or unbonded for a period of sixty (60) days; or
(iii) there shall be commenced against Maker any case, proceeding
or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an
order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within sixty (60)
days from the entry thereof; or (iv) Maker shall take any action
in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clauses (c)(i),
(ii) or (iii) above; or (d) if, subject to the terms and
conditions of the Subordination Agreement, the Senior Creditor
(as defined in the Subordination Agreement) takes action to
collect payment of the Senior Debt (as defined in the
Subordination Agreement) upon a default by Maker; then, and in
each and every such case, Holder may declare the full amount of
this Note, including all accrued and unpaid interest hereon, to
be immediately due and payable and thereupon, such amount shall
become so due and payable without presentation, protest or
further demand or notice of any kind, all of which are hereby
expressly waived, and Holder shall be entitled to receive, to the
extent lawful, reasonable attorneys' fees for the collection of
such amount; provided, however, that with respect to clause (d)
above, Holder may not accelerate payment of this Note if the
default on the Senior Debt is cured by Maker, waived by the
Senior Creditor, or if the Senior Creditor terminates action to
collect payment thereon.
Any notice, presentation or demand to or upon Maker in
respect of this Note may be given or made in writing to the
address set forth above, and shall be deemed to be duly given if
personally delivered with receipt acknowledged, if mailed by
registered or certified mail, first class, postage prepaid, or if
delivered by a nationally recognized overnight courier service to
such address, or, if any other address shall at any time be
designated for this purpose by Maker in writing to Holder, to
such other address.
The provisions of this Note shall be construed and
interpreted, and all rights and obligations hereunder determined,
in accordance with the laws of the State of New York, without
reference to the conflict of laws principles thereof.
This Note shall bind Maker and its successors and
assigns, and shall inure to the benefit of Holder and his heirs,
administrators, successors and assigns.
IN WITNESS WHEREOF, Maker has duly executed this Note
on the day and year first above written.
FIRECOM, INC.
By:____________________________________
Name:
Title:
EXHIBIT B
[FORM OF]
PROXY
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The undersigned, _____________ (the "Shareholder"),
being a holder of shares of common stock, $.01 par value per
share (the "Common Stock"), of Firecom, Inc., a New York
corporation (the "Company"), acting pursuant to Section 8 of the
Option and Escrow Agreement of even date herewith (the "Option
and Escrow Agreement"), by and among the Company, the Shareholder
and the other parties thereto, hereby constitutes and appoints
Xxxx Xxxxxx, Chairman of the Board of the Company (the
"Chairman"), with power of substitution, his true and lawful
attorney and agent for the Shareholder, and in his name, place
and stead, to vote or consent, at the Chairman's sole discretion,
as the Shareholder's proxy in respect of all of the shares of
Common Stock of the Company owned by the Shareholders which the
Shareholder is entitled to vote at any meeting (whether or not an
adjourned meeting) of the Shareholders of the Company or by
written consent in lieu of a meeting, or otherwise, for the
Shareholder and in the Shareholder's name, to act as fully as the
Shareholders could do if present at such meeting or executing
such consent; and the undersigned hereby revokes any other proxy
heretofore given by the undersigned in respect of the matters
covered hereby.
This proxy is irrevocable; provided, however, that this
proxy shall be automatically suspended (and subsequently
reinstated, if applicable) upon the occurrence of certain events
set forth in Section 8 of the Option and Escrow Agreement.
This proxy shall be governed by and construed in
accordance with the laws of the State of New York.
Dated: June ___, 1995 _______________________________
SCHEDULE A
Shareholder Number of Option Shares
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Xxxxx X. May
000 Xxxxxx Xxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000 29,339
Xxxxxxx X. May
000 Xxxxxx Xxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000 157,552
Xxxxxxxx X. May
000 Xxxxxx Xxx Xxxx
Xxxx Xxxx, Xxx Xxxx 00000 159,552
Xxxxxxx X. May
00 Xxxxxx Xxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000 167,552
Xxxxxxxx Xxxxxxx
00 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000 22,500
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TOTAL 536,495
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