SHAREHOLDERS AND VOTING AGREEMENT
AGREEMENT dated as of the 24th day of January, 2001, (this "Agreement") by
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and among ▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the "▇▇▇▇▇▇
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Group"), ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (collectively, the
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"Barotz Group"), ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Jan
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▇▇▇▇▇-▇▇▇▇ and the ▇▇▇▇▇-▇▇▇▇ Family Trust (collectively, the "▇▇▇▇▇-▇▇▇▇ Group"
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and, together with the ▇▇▇▇▇▇ Group and the Barotz Group, the "Control Groups"
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and, together with each of the aforementioned person, the "Parties").
WHEREAS, certain of the Parties are parties to the agreement June 11, 1997
(the "1997 Voting Agreement") relating among other things to voting agreements
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and transfer restrictions with respect to the common stock of Firecom, Inc., a
New York corporation ("Firecom"), owned by such parties;
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WHEREAS, the members of the ▇▇▇▇▇▇ Group beneficially own or control that
number of the issued and outstanding shares set forth opposite their name in
Schedule I hereof (the "▇▇▇▇▇▇ Shares") of $0.01 par value of Firecom (the
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"Firecom Stock"), the members of the Barotz Group beneficially own or control
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that number set forth opposite their name in Schedule I hereof of the issued and
outstanding shares (the "Barotz Shares") of Firecom Stock, and the members of
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the ▇▇▇▇▇-▇▇▇▇ Group beneficially own or control that number set forth opposite
their name in Schedule I hereof of the issued and outstanding shares (the
"▇▇▇▇▇-▇▇▇▇ Shares") of Firecom Stock, and collectively, the Control Groups
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beneficially own or control more than 74% of the voting rights and 68.8% of the
ownership rights in respect of Firecom Stock;
WHEREAS, ▇▇▇▇▇▇ has caused to be incorporated, ALRM Acquisition Inc., a New
York corporation ("NewCo");
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WHEREAS, the Parties wish to hereby effect a merger (the "Proposed Merger")
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between NewCo and Firecom in which Firecom shall be the surviving corporation,
whereby all shares in the capital stock of Firecom held by parties other than
the Control Groups shall be exchanged for a cash price to be determined; and
Firecom shall be deregistered under the Securities Exchange Act of 1934, as
amended, and shall elect to become an "S corporation" as the term is defined
under Section 1361 of the Internal Revenue Code and Section 208 (1-A) of the New
York Tax Law; and
WHEREAS, the Parties agree that the execution of this Agreement and the
granting of the irrevocable proxy hereby would serve the best interests of
Firecom and NewCo, would promote the harmonious conduct of the affairs thereof
and would promote the Parties' mutual best interests;
NOW, THEREFORE; the Parties agree as follows:
1. Purpose. The Parties agree that it is the purpose of this Agreement to
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effect the privatization of Firecom through the Proposed Merger between NewCo
and Firecom, in which Firecom is the surviving corporation (herein referred to
as the "Post-Merger Corporation"), whereby all Firecom Stock other than the
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Subject Shares as hereinafter defined (the "Unaffiliated Shares") is converted
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into cash and the holders of the Unaffiliated Shares shall have no further
interest in the Post-Merger Corporation, the deregistration of the Post-Merger
Corporation pursuant to the Securities Exchange Act of 1934, as amended, and the
election by the Post-Merger Corporation to become an "S corporation" as the term
is defined under Section 208 (1-A) of the New York Tax Law and Section 1361 of
the Internal Revenue Code.
2. Effectiveness.
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a. Term. This Agreement shall be effective upon the execution hereof
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(the "Effective Date") and shall terminate upon the earlier of
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the tenth anniversary of the Effective Date and the date on which
▇▇▇▇▇▇ informs the other Parties in writing of his abandonment of
the purpose of this Agreement set forth in Section 1 hereof. If
the Proposed Merger does not occur on or before the nine month
anniversary of the Effective Date, this Agreement shall terminate
and be of no further effect.
b. Termination of 1997 Agreement. Upon the Effective Date, the 1997
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Agreement shall terminate and be of no further effect; provided,
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that upon the termination of this Agreement for any reason
pursuant to Section 2a prior to June 11, 2007 (the "Original
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Termination Date"), the 1997 Agreement shall become operative and
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binding upon the parties thereto as if never terminated hereby,
until the Original Termination Date, unless otherwise agreed by
the Parties hereto.
3. Merger of NewCo with and into Firecom.
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a. Negotiation Authority. The Parties agree that ▇▇▇▇▇▇ shall have
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full and exclusive authority to negotiate the terms of a merger
agreement to effect the Proposed Merger by and between NewCo and
Firecom to achieve the purpose stated in Section 1 hereof, and
the Parties hereby agree to execute any further agreements or
consents requested by ▇▇▇▇▇▇ in connection therewith and agree to
be bound irrevocably thereby.
b. Source of funds. The Parties agree that the source of the funds
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for the merger consideration to be paid to the holders of
Unaffiliated Shares under the merger agreement for the Proposed
Merger shall be Firecom's available funds or funds made available
through loans to Firecom by third parties in such amount and on
such terms as are acceptable in the sole discretion of ▇▇▇▇▇▇.
c. Filings. The Parties agree that ▇▇▇▇▇▇ shall have full authority
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to file or cause to be filed on behalf of the Parties, the
Post-Merger Corporation or NewCo such fillings, with the
Securities and Exchange Commission ("SEC") and other governmental
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authorities as necessary, as are necessary or desirable to effect
the purpose stated in Section 1 hereof, including without
limitation any Schedule 13D or 13E-3 filing with the SEC and any
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filing required by state authorities of New York or under the
Internal Revenue Code.
d. Firecom Stock. "Firecom Stock" shall also mean, where
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appropriate, shares in the Common Stock or Class A Common Stock,
par value $0.01, of the Post-Merger Corporation.
4. Actions to be taken on Effective Date. Simultaneous with the execution
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of this Agreement, the following shall occur:
a. Election of Directors. ▇▇▇▇▇▇, as incorporator of NewCo, shall
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elect himself, ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ to the Board of
Directors of NewCo. The proxy given to ▇▇▇▇▇▇ under Section 5a
below shall include the right to increase the Board by up to two
additional directors selected by him.
b. Capitalization of NewCo. The ▇▇▇▇▇▇ Group shall contribute
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thirty-two thousand dollars ($32,000), the Barotz Group shall
contribute eight thousand dollars ($8,000) and the ▇▇▇▇▇-▇▇▇▇
Group shall contribute eight thousand dollars ($8,000) to
capitalize NewCo. In the event that ▇▇▇▇▇▇ determines that NewCo
requires additional capital to effect the purpose of this
Agreement, then ▇▇▇▇▇▇ shall notify each Control Group of its pro
rata share of the additional capital requirement, and each
Control Group shall have five (5) business day to contribute such
additional capital; provided, that no Control Group shall be
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obligated to contribute its pro rata share of additional capital
unless the ▇▇▇▇▇▇ Group contributes its pro rata share of the
additional capital. In the event that either the Barotz Group or
the ▇▇▇▇▇-▇▇▇▇ Group fails to make a contribution required
hereunder, the ▇▇▇▇▇▇ Group may, at its option, contribute such
amount on behalf of such other Control Group(s), and such
contribution shall be deemed a loan from the ▇▇▇▇▇▇ Group to such
other Control Group(s), payable on demand, with interest at a
rate of 18% per annum.
c. Issuance of Shares. The Parties shall cause NewCo to issue an
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aggregate of 1,000 shares of common stock, par value $0.01 per
share, to the Control Groups in proportion to their holdings of
the Subject Shares as of the date hereof (the "NewCo Shares").
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d. Ratification of actions by Incorporator. The Parties shall cause
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the Board of Directors of NewCo to execute a unanimous written
consent ratifying all actions taken by ▇▇▇▇▇▇, as the
incorporator of NewCo, in furtherance of the purposes set forth
herein, and specifically ratifying the By-Laws of NewCo as
adopted by the incorporator.
5. Irrevocable Proxy.
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a. Appointment. All of the members of the ▇▇▇▇▇▇ Group, the Barotz
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Group and the ▇▇▇▇▇-▇▇▇▇ Group hereby irrevocably make,
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constitute and appoint ▇▇▇▇▇▇ as their true and lawful attorney,
agent and proxy with respect to their respective Subject Shares
and NewCo Shares, with full power of substitution, for them and
in their name, to act as their proxy for such Subject Shares and
NewCo Shares at every annual, general or special meeting of
shareholders of Firecom, and at any adjournment thereof
(including consents in writing without a meeting to action which
may be taken at a meeting of shareholders), to vote, in his sole
discretion, for the transaction of any and all business that may
come before the shareholders, giving and granting to ▇▇▇▇▇▇ full
power and authority to do each and every act and thing whether
necessary or desirable to be done in respect of the affairs of
Firecom and NewCo and in his judgment consistent with the
purposes hereof, with full power of substitution, appointment and
revocation, hereby ratifying and confirming all that ▇▇▇▇▇▇ shall
do and cause to be done by virtue hereof (including, without
limitation, the approval of the reimbursement and/or repayment to
or on behalf of ▇▇▇▇▇▇ and/or his affiliates of fees and expenses
relating to the efforts conducted in connection with the Proposed
Merger and related matters) (the "Irrevocable Proxy"). In the
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event of the death or the permanent disability of ▇▇▇▇▇▇ during
the term of this Irrevocable Proxy, the Parties agree that the
then Board of Directors, as it may consist from time to time, of
Firecom or NewCo as the case may be shall exercise all rights
hereunder by majority vote thereof.
b. Irrevocability. The Parties agree that this Irrevocable Proxy is
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irrevocable in accordance with the provisions of Section
609(f)(5) of the New York Business Corporation Law. This
Irrevocable Proxy shall not be revocable or revoked by the
Parties and shall be binding upon their legal representatives,
heirs and administrators, for a term commencing the date hereof
and terminating upon the earlier of the termination of this
Agreement and the date on which the Proposed Merger is
consummated.
c. Further Assurances. Pursuant to this agreement, the Parties agree
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to execute, acknowledge and deliver or will cause to be executed,
acknowledged or delivered all further instruments as may be
required to grant and confirm to ▇▇▇▇▇▇ the Irrevocable Proxy for
the term hereof with respect to the Subject Shares.
d. Firecom Successors. For purposes of this Section 5, "Firecom"
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includes any successor to the business as a whole of Firecom
whether by merger or sale of all or substantially all of the
assets of Firecom.
6. Subject Shares.
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a. Current Shareholdings. Each Control Group hereby represents that
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Schedule I sets forth the true and complete ownership and/or
control by such Control Group of Firecom Stock (the "Subject
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Shares"). Each of the Parties acknowledges and agrees that the
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Subject Shares include all shares of Firecom Stock beneficially
4
owned or controlled by such Party and such Party's affiliates
and/or immediate family.
b. Non-transferability. No Party shall sell or permit to be sold or
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otherwise transfer or permit to be transferred beneficial
ownership or control of any Subject Shares or any Put Option,
except to an affiliate controlled by such Party or such Party's
immediate family or to another member of such Party's Control
Group, except as permitted specifically hereunder or as agreed by
the Parties.
c. Restrictive Legend. The Parties agree that the certificates
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representing the Subject Shares shall bear the following legend:
"The shares representing this certificate are subject to
restrictions on transfer and an irrevocable proxy as contained in
an Agreement dated January 24, 2001, among ▇▇▇▇ ▇▇▇▇▇▇ and the
parties thereto, a copy of which may be examined at the principal
offices of Firecom, Inc., at 39 - ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇."
d. Transferees to be Bound by Agreement. Other than as permitted
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under Section 6h, no person may acquire beneficial ownership or
control of the Subject Shares pursuant to a transfer permitted
hereunder unless such person executes an acknowledgement, in a
form reasonably satisfactory to ▇▇▇▇▇▇, that such person and such
shares shall be bound by the terms of this Agreement.
e. Additional Shares. In case Firecom shall at any time issue
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additional Firecom Stock by way of dividend or other distribution
of Firecom Stock, or subdivide, reclassify or combine the
outstanding shares of Firecom Stock, the number of shares subject
to this agreement shall be adjusted to take into account such
event so that this Agreement shall cover the Subject Shares as so
increased, reclassified or combined.
f. Mandatory Repurchase of Shares. (1) Subject to the provisions of
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Clause (2) below, for one year following the fifth anniversary of
the Effective Date, members of the Barotz Group or the ▇▇▇▇▇-▇▇▇▇
shall be entitled to put their shares of the Firecom Stock to the
Post-Merger Corporation by providing notice of the exercise of
such option (the "Put Option") which shall indicate the number of
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shares such Party wishes to sell; upon receipt of such notice,
the Post-Merger Corporation shall have six months to purchase
such shares of Firecom Stock at a price per share equal to ten
times the Post-Merger Corporation's after-tax net income per
share on a fully diluted basis, to be calculated in accordance
with generally accepted accounting principles (the "Put Price"),
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with the Put Price payable in annual installments calculated so
that the aggregate payments to be made to persons exercising the
Put Options would not exceed $300,000 per year (the $300,000
shall be pro rated among all persons exercising the Put Option
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based upon the amounts payable to them) with interest at the
prime rate. The obligation to pay the Put Price and any interest
thereon shall be subordinated in favor of all indebtedness of the
Post-Merger Corporation to banks and other financial institutions
as may be outstanding from time to time (it being a condition to
the exercise of the Put Option, that the selling shareholders
agree to enter into such subordination agreements as may be
requested by such creditors). For purposes of computing the Put
Price, if the Post-Merger Corporation is an "S corporation" at
such time, tax will be imputed based upon the tax that would be
applicable to the Post-Merger Corporation if it were a
"C-corporation" as the term is defined under the Internal Revenue
Code in determining after-tax net income. If a change in the
control of the Post-Merger Corporation occurs within nine months
following the repurchase by the Post-Merger Corporation of such
shares of Firecom Stock pursuant to the exercise by one or more
parties of the Put Option, and if the price per share received by
the members of the ▇▇▇▇▇▇ Group effecting such change of control
is greater than that paid by the Post-Merger Corporation pursuant
to the formula set forth above upon in response to the exercise
of a Put Option, then the members of the ▇▇▇▇▇▇ Group and any
other remaining holders of Firecom Stock participating in the
sale that effects the change of control shall redistribute such
excess among themselves and the Parties who exercised the Put
Option so that each Party shall receive the same price per share
of Firecom Stock. The Put Option may be exercised only once by
each Group.
(2) It shall be a condition to the exercisability of the Put
Option (a condition that may be waived by the Post-Merger
Corporation), that the Post-Merger Corporation shall have had
after tax net income of at least $1 million on a cumulative basis
during the four fiscal quarters immediately preceding exercise of
the Put Option. (For purposes of computing such net income, if
the Post-Merger Corporation is an "S corporation" at such time,
tax will be imputed based upon the tax that would be applicable
to the Post-Merger Corporation if it were a "C-corporation" as
the term is defined under the Internal Revenue Code in
determining after-tax net income.) If such minimum shall not have
been achieved during the period when the Put Option is otherwise
exercisable, then the period during which the Put Option may be
exercised shall automatically be extended for a period not to
exceed the tenth anniversary of the Effective Date until such net
income level shall have been achieved over a period of four
fiscal quarters.
g. Transfer to Third Parties. On or after the sixth anniversary of
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the Effective Date, any Control Group may transfer all but not
less than all its Firecom Stock to a third party in a bona fide
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sale transaction for cash subject to this Section 6g, provided,
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that such Control Group must transfer all of its Firecom Stock at
such time to the same third-party purchaser, and that such
Control Group must first offer such Firecom Stock to the other
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Control Groups as provided herein. The transferring Control Group
shall notify each other Control Group in writing, identifying the
third party and enclosing a copy of the offer received from the
third party (the "Transfer Notice"). The notice shall constitute
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an offer by the transferring Control Group, irrevocable for
thirty (30) calendar days from the date such notice was sent, to
transfer to the Control Groups its Firecom Stock on the terms
offered by the third party. If both of the other Control Groups
wish to purchase the transferring Control Group's Firecom Stock
on such terms, then they shall each purchase such Firecom Stock
in proportion to their own holdings of Firecom Stock. If only one
of the other Control Groups wishes to purchase the offered
Firecom Stock, then it must purchase all of the offered Firecom
Stock. The transferring Control Group may transfer its Firecom
Stock on the terms specified in its notice to the other Control
Groups to the third party identified therein if the other Control
Groups (or one of them) do not exercise their rights to acquire
the Firecom Stock on such terms within the thirty (30) day
period. The transferring Control Group may not thereafter
transfer or agree to transfer its Firecom Stock on any terms and
conditions not substantially similar to those stated in its
Transfer Notice, including without limitation, at any price that
is lower by more than 5% from the price specified in the Transfer
Notice, without first reoffering it to the other Control Groups
on such terms in accordance with this section 6g. In the event a
transfer shall be made to a third party pursuant to this Section,
the Put Option will terminate as to the transferred Firecom
Stock.
h. Right of Barotz Group and ▇▇▇▇▇-▇▇▇▇ Group to Include Shares. On
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or after the sixth anniversary of the Effective Date, the ▇▇▇▇▇▇
Group may transfer its Firecom Stock without restriction to a
third party, provided that the each other Control Group shall
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have the right (the "Take-Along Right") to require such third
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party to purchase all of its Firecom Stock at the same price per
share and upon the same terms and conditions as are specified in
the Transfer Notice delivered by the ▇▇▇▇▇▇ Group to the other
Control Groups. The Take-Along Right may be exercised by either
or both Control Groups by delivery of a written notice to the
▇▇▇▇▇▇ Group (the "Take-Along Notice") within twenty (20)
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calendar days following the receipt of the Transfer Notice. If no
Take-Along Notice is received from a Control Group within the
20-day period, then the Take-Along Right of such Control Group
shall be extended for ten (10) days following a resending of the
Transfer Notice. It shall be a condition precedent to the
transfer of shares of Firecom Stock by the ▇▇▇▇▇▇ Group that the
third party purchases from the other Control Groups the Firecom
Stock tendered thereby on the same terms and conditions as it
purchases Firecom Stock from the ▇▇▇▇▇▇ Group. If no Take-Along
Notice is received during the applicable period referred to in
this Section 6h, the ▇▇▇▇▇▇ Group shall have the right for a
60-day period to transfer its Firecom Stock on terms and
conditions no more favorable to the ▇▇▇▇▇▇ Group than those
stated in the Transfer Notice.
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i. Further Assurances. Notwithstanding anything to the contrary
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contained herein, the exercise of the Take-Along Right shall be
conditioned upon the agreement by each exercising Control Group
to execute any customary agreement, certificate or other document
required to be executed in connection with such transfer;
provided, however, that such Control Group shall only be required
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to give representations or warranties or make covenants with
respect to the title, ownership, and delivery of the interests,
including the authority to transfer such interests, and in no
event shall any such Control Group be required to make
representations and warranties more extensive than those given by
the ▇▇▇▇▇▇ Group or to provide indemnities (other than with
respect to such limited representation and warranties)
disproportionately (based upon the percentage of sales proceeds
to be received) to those provided by the ▇▇▇▇▇▇ Group. Failure of
a Control Group to comply with the provisions of this Section 6i
shall constitute a breach of this Agreement and a waiver of its
Take-Along Right hereunder.
j. Right of ▇▇▇▇▇▇ Group to Require Sale of Shares. If the ▇▇▇▇▇▇
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Group receives a bona fide offer from an unaffiliated third party
---- ----
to purchase all of the Firecom Stock beneficially owned or
controlled by the Parties for cash or marketable securities and
on such other terms as may be acceptable to the ▇▇▇▇▇▇ Group, the
▇▇▇▇▇▇ Group shall have the right and option to deliver a
Transfer Notice to each of the other Control Groups. If the other
Control Groups do not exercise their Take-Along Rights with
respect to this Transfer Notice, then ▇▇▇▇▇▇ may require that the
other Control Groups sell their Firecom Stock at such time upon
the terms contained in such Transfer Notice. The Parties hereto
shall take all actions that may be reasonably requested in order
to effect the transfer contemplated by this Section 6j. As a
condition to the foregoing, the Barotz Group and the ▇▇▇▇▇-▇▇▇▇
Group may require that the ▇▇▇▇▇▇ Group secure a fairness opinion
regarding the price proposed to be paid from a mutually
acceptable investment bank, or if no other investment bank is
mutually acceptable, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. or a successor thereto,
with the cost of such opinion to be shared by the Control Groups.
7. Transfer of Subject Shares to Eligible Holders of "S corporation"
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Shares.
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a. Transfer to Eligible Affiliates. Each of the Parties agrees that
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prior to the consummation of the Proposed Merger, any Party who
is ineligible to hold shares in an "S corporation" shall have
transferred beneficial ownership and control of such Party's
Subject Shares to a member of such Party's Control Group, or an
immediate family member or affiliate thereof, who is an eligible
holder of shares in an "S corporation" (each, an "Eligible
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Holder").
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b. Terms of Sale to Parties. In the event that any Party is unable
------------------------
or unwilling to transfer such Subject Shares in accordance with
the requirements set forth in Section 7a, such Party agrees to
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sell such Subject Shares, effective upon the consummation of the
Proposed Merger, to the members of the other Control Groups who
are Eligible Holders at a price equal to $0.70 per share of
Firecom Stock, payable in monthly installments over three years
with interest at 8%, on a pro rata basis. In the event that the
members of any Control Group, collectively, wish to purchase less
than such Control Group's pro rata share of such Firecom Stock,
then the remaining portion of such pro rata share of the Firecom
Stock may be purchased by the other Control Groups on a pro rata
basis; provided, that in any event no one may control or
beneficially own Firecom Stock if such person is not an Eligible
Holder.
c. Sale to Firecom. In the event that the Parties who are Eligible
---------------
Holders are unable or unwilling to purchase any portion of the
Subject Shares referred to in Section 7a hereof, then the Parties
shall cause Firecom to purchase any such portion of the Subject
Shares on the same terms outlined in Section 7b hereof.
d. Covenant Against Future Ineligibility. Each Party covenants that
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it shall not take or permit to be taken any action that result
would prevent the classification of Firecom as an "S
corporation".
e. Authority to Make Election. The Parties agree that ▇▇▇▇▇▇ shall
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have full authority to make and consent to the "S corporation"
election necessary to classify Firecom as an "S corporation"
effective immediately upon or following the consummation of the
Proposed Merger.
8. Other Agreements Concerning Management and Control of the Post-Merger
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Corporation. The Parties agree to be bound by the following restrictions
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concerning the management and control of the Post-Merger Corporation for the
term of this Agreement:
a. Board of Directors. The Parties agree that the Board of Directors
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of the Post-Merger Corporation shall consist of five directors.
The Parties agree to cause the election of the three directors to
be nominated in the exclusive discretion of the ▇▇▇▇▇▇ Group, one
director to be nominated in the exclusive discretion of the
Barotz Group, and one director to be nominated in the exclusive
discretion of the ▇▇▇▇▇-▇▇▇▇ Group, for so long as any such
Control Groups continue to hold Firecom Stock.
b. Directors' Fees and Compensation. Following the Merger, each
--------------------------------
director nominated by the Barotz Group or the ▇▇▇▇▇-▇▇▇▇ Group
and elected in accordance with Section 8a hereof shall be
entitled to receive a director's fee from Firecom in the form of
cash or expense reimbursement equal to sixty-five thousand
dollars ($65,000) per year. So long as ▇▇▇▇▇▇ continues to serve
the Post-Merger Corporation in his present capacity as President
and Chief Executive Officer, he shall continue to be compensated
in accordance with the present practices of Firecom. To the
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extent that ▇▇▇▇▇▇'▇ base salary (not including bonuses based on
the current earnings-linked formula) is increased, the directors'
fees shall similarly increase proportionally.
c. S. Corporation Distributions. The Post-Merger Corporation shall
----------------------------
be managed with a view to making distributions to its
shareholders sufficient to discharge income tax liabilities
arising out of the allocation of taxable income generated by the
Post-Merger Corporation's activities.
9. Group Representatives. Each Control Group hereby designates one Person
---------------------
to be such Control Group's authorized representative (each, a "Group
-----
Representative") for all notices to be given to or actions to be taken by such
--------------
Control Group hereunder or in connection with the purposes hereof, without
limitation. Each Party agrees to be bound irrevocably by such actions of or
notices to its Group Representative; provided, that the members of any Control
Group may, by unanimous written consent of all such members, appoint a new Group
Representative, which appointment shall be effective no earlier than upon the
receipt of each other Group Representative of written notice of such
appointment. The Group Representatives shall be as follows:
▇. ▇▇▇▇▇▇ Group: ▇▇▇▇ ▇▇▇▇▇▇
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▇. ▇▇▇▇▇▇ Group: ▇▇▇▇▇ ▇▇▇▇▇▇
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▇. ▇▇▇▇▇-▇▇▇▇ Group: ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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10. Cooperation; Joint Filings. The Parties agree to cooperate with ▇▇▇▇▇▇
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in all filings required to be made by NewCo and/or the Post-Merger Corporation
by or with any governmental authority necessary or desirable for or incidental
to the purpose of this Agreement. The Parties agree that all filings by any
Party individually in respect of its participation in the transactions described
herein or incidental thereto shall be subject to the review and approval of
▇▇▇▇▇▇.
11. Miscellaneous.
-------------
a. Remedies. The Parties hereto agree that legal remedies for a
--------
breach of this Agreement will be inadequate and that this
Agreement may be enforced by injunctive or other equitable
relief. Such equitable remedies and all other remedies provided
for in this Agreement shall be cumulative and in addition to any
other remedies which any party hereto may have under applicable
law, equity, this Agreement or otherwise.
b. Notices. All notices provided for this Agreement shall be
-------
effective only if, and deemed given when, in writing and
delivered by personal service or deposited in the United States
mail and sent, postage prepaid, by registered or certified mail,
return receipt requested, addressed to the appropriate party at
this or her address set forth below his or her signature to this
Agreement, or to such other address as such party shall have
designated by notice similarly given.
10
c. Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties hereto with regard to the subject
matter hereof, and may not be amended or modified, nor may any of
its provisions be waived except by a writing executed by all the
Parties or, in the case of a waiver, by each party waiving
compliance.
d. Successors; Assignment. The terms and provisions of this
----------------------
Agreement shall inure to the benefit of and be binding upon the
heirs, legal representatives and successors of the parties, but
may not be assigned by any party except as specifically set forth
herein.
e. Governing Law. This Agreement shall be governed by, and construed
-------------
under and in accordance with, the laws of the State of New York
without giving effect to the conflict of laws principles of said
State and irrespective of the place of business, residence or
domicile of the parties to this Agreement.
f. Headings. The headings contained in this Agreement are for
--------
convenience of reference only and shall not affect the
construction or interpretation of the Agreement.
g. Counterparts. This Agreement may be executed in one or more
------------
counterparts each of which shall be deemed to be an original but
all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above written.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
11
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attorney-in-fact
---------------------------------------
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attorney-in-fact
---------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attorney-in-Fact
---------------------------------------
▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attorney-in-fact
---------------------------------------
▇▇▇▇▇-▇▇▇▇ Family Trust
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
12
SCHEDULE I
Ownership of Subject Shares
-------------------------------- ----------------------------------------------
NO. OF SHARES OWNED
-------------------------------- ----------------------------------------------
CLASS A
GROUPS COMMON STOCK COMMON STOCK
-------------------------------- ---------------------- -----------------------
THE ▇▇▇▇▇▇ GROUP
-------------------------------- ---------------------- -----------------------
▇▇▇▇ ▇▇▇▇▇▇ 1,249,252 1,249,252
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇ ▇▇▇▇▇▇ 1,164,250 1,164,250
-------------------------------- ---------------------- -----------------------
TOTAL 2,413,502 2,413,502
-------------------------------- ---------------------- -----------------------
-------------------------------- ---------------------- -----------------------
THE BAROTZ GROUP
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ 176,649 176,649
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 176,650 176,650
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇ ▇▇▇▇▇▇ 176,649 176,649
-------------------------------- ---------------------- -----------------------
TOTAL 529,948 529,948
-------------------------------- ---------------------- -----------------------
-------------------------------- ---------------------- -----------------------
THE ▇▇▇▇▇-▇▇▇▇ GROUP
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ 404,834 404,834
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ 55,034 55,034
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ 54,934 54,934
-------------------------------- ---------------------- -----------------------
▇▇▇ ▇▇▇▇▇-▇▇▇▇ 56,234 56,234
-------------------------------- ---------------------- -----------------------
▇▇▇▇▇-▇▇▇▇ Family Trust 179,947 179,947
-------------------------------- ---------------------- -----------------------
TOTAL 750,983 750,983
------- -------
-------------------------------- ---------------------- -----------------------
-------------------------------- ---------------------- -----------------------
GRAND TOTAL 3,694,433 3,694,433
========= =========
-------------------------------- ---------------------- -----------------------
13
