EXHIBIT 2.6
CONSENT AND LIMITED WAIVER AGREEMENT
THIS CONSENT AND LIMITED WAIVER AGREEMENT (this "Waiver"), is made and
entered into on March 18, 2002, by and between WESTERN RESOURCES, INC., a Kansas
corporation ("Western") and PROTECTION ONE, INC., a Delaware corporation
("Protection One"). Unless otherwise defined herein, all capitalized terms used
herein shall have the respective meanings provided such terms in the
Contribution Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Western and Protection One are parties to a Contribution
Agreement, dated as of July 30, 1997 (as heretofore amended, modified or
supplemented, the "Contribution Agreement"); and
WHEREAS, Section 3.18(c) of the Contribution Agreement provides that the
percentage of Protection One Voting Securities beneficially owned by Western on
a fully diluted basis may not in the aggregate exceed 81% of the Voting
Securities issued and outstanding at any one time (the "Ownership Ceiling"); and
WHEREAS, due to the recent expiration of options held by former Protection
One employees and due to Western's having recently acquired certain Convertible
Senior Subordinated Notes issued by Protection One, Western's beneficial
ownership of Protection One Voting Securities exceeds 81% of the Voting
Securities issued and outstanding; and
WHEREAS, Protection One desires to consent to Western's lack of compliance
with the requirements of Section 3.18(c) and grant a limited waiver of
Protection One's rights and remedies for such lack of compliance as more
particularly provided herein; and
WHEREAS, pursuant to Section 6.2 of the Contribution Agreement, Protection
One may not amend, supplement or otherwise modify any provision of the
Contribution Agreement, and Protection One may not waive any provision thereof,
unless such amendment, supplement, modification or waiver shall have been
approved by the affirmative vote of a majority of the Continuing Directors; and
WHEREAS, Xx. Xxx X. Xxxx and Xx. Xxxxx X. Xxxxxx (collectively, the
"Continuing Directors") constitute all of the Continuing Directors and desire to
authorize Protection One to grant the Waiver as contemplated herein;
WHEREAS, subject to the terms and conditions set forth herein, the parties
hereto agree as follows;
NOW, THEREFORE, it is agreed:
1. CONSENT: Protection One hereby consents, on a one-time basis, to Western's
lack of compliance with Section 3.18(c) of the Contribution Agreement in respect
to the Ownership Ceiling; provided, however, the one-time consent set forth in
this Section 1 shall apply only Western's lack of compliance with the Ownership
Ceiling during the period commencing on March 11, 2002 (the "Waiver Effective
Date") and ending on July 1, 2002 (and with such period being referred to herein
as the "Waiver Period").
2. LIMITED WAIVER: Protection One hereby waives, on a one-time basis, any breach
or default that could otherwise be asserted by Protection One under the
Contribution Agreement solely as a
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result of Western's lack of compliance with Section 3.18(c) of the Contribution
Agreement in respect to the Ownership Ceiling; provided, however, the one-time
waiver set forth in this Section 2 shall apply only to such breach or default
that could otherwise be or have been asserted by Protection One due to Western's
lack of compliance with the Ownership Ceiling during the Waiver Period.
3. MISCELLANEOUS:
(a) This Waiver is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Contribution
Agreement or any other agreement or document.
(b) This Waiver may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument.
4. GOVERNING LAW. THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF DELAWARE.
5. REPRESENTATIONS OF WESTERN. In order to induce the Protection One to enter
into this Waiver, Western hereby represents and warrants that after giving
effect to this Waiver as of the Waiver Effective Date, (i) there is no material
breach of Western's obligations under the Contribution Agreement, and (ii) all
representations and warranties contained in the Contribution Agreement are true
and correct in all material respects.
6. EFFECTIVE DATE OF WAIVER. This Waiver shall become effective on the Waiver
Effective Date.
7. CONTRIBUTION AGREEMENT. From and after the Waiver Effective Date, all
references in the Contribution Agreement and any other document referring to the
Contribution Agreement shall be deemed to be references to the Contribution
Agreement after giving effect to this Waiver.
8. APPROVAL OF CONTINUING DIRECTORS. The Continuing Directors have executed this
Waiver solely to reflect their approval hereof, in accordance with Section 6.2
of the Contribution Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Waiver to be duly executed and delivered as of the date first above written.
PROTECTION ONE, INC.
By: /s/Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: EVP & CFO
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WESTERN RESOURCES, INC.
By: /s/ Xxxxxxx X. Lake
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Name: Xxxxxxx X. Lake
Title: EVP
/s/ Xxx X. Xxxx
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Xxx X. Xxxx
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
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