EXHIBIT 3
PREFERRED STOCK PURCHASE AGREEMENT
PREFERRED STOCK PURCHASE AGREEMENT, (this "AGREEMENT") dated
as of January 8, 1999, by and among T16 Acquisition Corp. ("BUYER"), a Delaware
corporation and an indirect, wholly-owned subsidiary of Tyco International Ltd.,
a Bermuda company ("TYCO"), the persons listed on SCHEDULE I hereto (such
persons being herein referred to individually as a "SELLER," and, collectively,
as "SELLERS"), American Stock Transfer & Trust Company, as escrow agent
("AGENT") and, solely with respect to SUBSECTIONS 11(d) and (f), Alarmguard
Holdings, Inc., a Delaware corporation ("ISSUER").
W I T N E S S E T H:
WHEREAS, Sellers are the registered and beneficial owners of
issued and outstanding shares of Series A Preferred Stock (the "SERIES A
PREFERRED STOCK") and Series B Preferred Stock (the "SERIES B PREFERRED STOCK"
and, together with the Series A Preferred Stock, the "PREFERRED STOCK") of
Issuer, in such respective series and amounts as are set forth in SCHEDULE I and
on the signature pages hereto; and
WHEREAS, Buyer, Tyco and Issuer have entered into an Agreement
and Plan of Merger, dated as of January 8, 1999, a copy of which is annexed
hereto as ANNEX A (the "MERGER AGREEMENT"), pursuant to which Buyer will
commence an offer (the "OFFER") to acquire all of the outstanding shares of
common stock, par value $0.0001 per share, of Issuer (the "COMMON STOCK"), and,
following the consummation of the Offer and subject to applicable securities
laws and the Delaware General Corporation Law, Buyer will be merged with and
into Issuer (the "MERGER"), and Issuer will become an indirect, wholly-owned
subsidiary of Tyco; and
WHEREAS, subject to and upon consummation of the Offer, each
Seller desires to sell to Buyer, and Buyer desires to purchase from each Seller
all right, title and interest of such Seller in and to such Seller's Preferred
Stock free and clear of all liens, claims, charges or encumbrances of any kind
(all such right, title and interest being collectively referred to herein as the
"ASSIGNED RIGHTS").
NOW, THEREFORE, in consideration of the premises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
Section 1. DELIVERY OF CERTIFICATES. Prior to the execution
and delivery of this Agreement, each Seller has delivered to Agent, with copies
to Buyer, the original certificates evidencing such Seller's Preferred Stock,
together with, in each case, stock powers duly endorsed in blank, accompanied by
such power-of-attorneys, certified board of directors resolutions or other
documentation as may be required for the registration of transfer to Buyer of
such Preferred Stock pursuant to the terms and conditions of this Agreement (all
such certificates, powers, powers of attorney, certified board resolutions and
other documents being referred to as the "PREFERRED STOCK DOCUMENTATION"), to be
held by Agent in escrow in accordance with the terms of this Agreement.
Signatures on the stock powers shall be guaranteed by a firm that is a
participant in the Security Transfer Agents Medallion Program or the Stock
Exchange Medallion Program.
Section 2. SALE AND PURCHASE OF PREFERRED STOCK. (a) Within
one (1) business day following the date on which Buyer first makes payment for
shares of Common Stock that Buyer has accepted for payment pursuant to the
Offer, Buyer shall pay to each Seller the purchase price of $1,400 per share of
Preferred Stock together with accrued and unpaid dividends to and including the
date of the Effective Time (as defined below) delivered in accordance with
SECTION 1 hereof by such Seller to Agent (the "PURCHASE PRICE") by wire transfer
of immediately available funds to the account designated by such Seller on its
respective signature page hereto. Upon payment of the Purchase Price to each
Seller, such Seller shall irrevocably sell, transfer, grant and convey
(collectively, "TRANSFER") to Buyer, without representation or warranty except
as provided in this Agreement, and Buyer shall purchase, the Assigned Rights of
such Seller (the time of such transfer and purchase of the Assigned Rights of a
Seller as aforesaid is referred to as the "EFFECTIVE TIME" with respect to such
Seller). Promptly upon delivery by Buyer to Agent of written evidence,
consisting of a Federal Reserve Wire Network Reference Number, the time
processed and the value date, of payment of the Purchase Price to a Seller,
Agent shall release and deliver to Buyer the Preferred Stock Documentation of
such Seller held by Agent.
(b) If (v) Buyer or its affiliate shall not publicly announce
the commencement of the Offer within seven (7) business days from the date of
this Agreement, or (w) Buyer or its affiliate or Issuer shall publicly announce
that the Merger Agreement has been terminated in accordance with its terms, or
(x) Buyer or its affiliate shall publicly announce that the Offer has expired
without Buyer having purchased any shares of Common Stock thereunder or (y)
Buyer shall publicly announce that it has increased the per share price payable
to the holders of Common Stock in the Offer and the Merger to an amount in
excess of $9.25 and such announcement shall not state that the holders of at
least 75% of the outstanding shares of Preferred Stock have consented to such
increase or (z) Buyer shall not furnish to Agent evidence of payment of the
Purchase Price to any Seller or Sellers on or before March 31, 1999, then, in
the case of clauses (v), (w), (x) and (y), Agent shall promptly thereafter
return the Preferred Stock Documentation to all Sellers or, in the case of
clause (z), Agent shall promptly thereafter return to the affected Seller(s),
their respective Preferred Stock Documentation. (Any event referred to in the
preceding sentence is hereinafter referred to as a "TERMINATION EVENT," except
that any event referred to in clause (z) shall be deemed to be a Termination
Event only with respect to the affected Sellers(s).) Nothing in this SUBSECTION
2(b) or elsewhere in this
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Agreement shall relieve Buyer of its obligation to purchase and pay for the
shares of Preferred Stock in accordance with SUBSECTION 2(a) if Buyer has
accepted shares of Common Stock for payment pursuant to the Offer.
(c) Upon delivery of all of the Preferred Stock Documentation
to Buyer and/or each Seller as provided in SUBSECTIONS 2(a) or 2(b), Agent shall
have no further duties or obligations under this Agreement.
Section 3. SELLERS' REPRESENTATIONS. Each Seller, severally
and not jointly, hereby represents and warrants to Buyer and its successors and
assigns, as of the date hereof, and as of the Effective Time with respect to
such Seller, that:
(a) POWER AND AUTHORITY. Such Seller has full power and
authority to assign its Assigned Rights and to enter into and perform this
Agreement. This Agreement (i) has been duly authorized, executed and delivered
by such Seller and (ii) is (subject to the application of bankruptcy, insolvency
or receivership laws to such Seller and equitable principles generally) legal,
valid and binding and enforceable against such Seller in accordance with its
terms;
(b) TITLE. Such Seller is the sole legal and beneficial owner
of the Assigned Rights and has good title thereto, free and clear of all liens,
claims, charges and encumbrances of any kind and at the Effective Time will
transfer to Buyer such good title, free and clear of any liens, claims, charges
and encumbrances of any kind;
(c) NO OTHER CONSENT. No consent, approval, waiver,
authorization, notice, declaration or filing ("CONSENT") is required to be
received by such Seller from or made by such Seller with any governmental or
regulatory authority, agency, department, board, commission or instrumentality
or any court, tribunal or arbitrator and any self-regulatory organization
(collectively, "GOVERNMENTAL AUTHORITY"), or any other person, in connection
with the execution or delivery by such Seller of this Agreement or the transfer
by such Seller of such Seller's Assigned Rights pursuant to this Agreement other
than such Consents that have heretofore been made or obtained;
(d) NO VIOLATIONS. Such Seller's execution and delivery of
this Agreement, the consummation by such Seller of the transactions contemplated
hereby and compliance by such Seller with any of the provisions hereof will not
(i) conflict with or result in any breach of any provision of the Certificate of
Incorporation, Bylaws or other charter document of such Seller, (ii) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any right of termination, cancellation or
acceleration) under any of the terms, conditions or provisions of, any material
contract, agreement, note, indenture, mortgage, lease, license or other
arrangement or understanding to which such Seller is a party or by which such
Seller or any of its assets are bound, (iii) result in the creation or
imposition of any lien or encumbrance of any kind upon the Assigned Rights of
such Seller, or (iv) violate any applicable provision of any statute, law, rule
or regulation or any order, decision, injunction, judgment, award or decree to
which such Seller or its assets or properties are subject;
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(e) LITIGATION. There is no suit, action or proceeding pending
or, to the knowledge of such Seller, threatened, nor is there any judgment,
decree, injunction, rule or order of any Governmental Authority against such
Seller or with respect to its Assigned Rights which, individually or in the
aggregate, would reasonably be expected adversely to affect such Seller's
transfer of its Assigned Rights pursuant to this Agreement or otherwise to
affect its ability to perform its obligations under this Agreement;
(f) SOPHISTICATED SELLER. (i) Such Seller is a sophisticated
seller with respect to its Assigned Rights, and has adequate information
concerning the business and financial condition of Issuer to make an informed
decision regarding the sale of its Assigned Rights and has independently and
without reliance upon Buyer and based on such information as such Seller has
deemed appropriate, made its own analysis and decision to sell its Assigned
Rights and to enter into this Agreement; (ii) Buyer has not given any investment
advice or rendered any opinion as to whether the sale of the Assigned Rights is
prudent; and (iii) such Seller acknowledges that if the Effective Time with
respect to such Seller shall occur, the transfer of the Assigned Rights to Buyer
hereunder shall be irrevocable and without any recourse to Buyer except with
respect to breaches of representations, warranties and covenants expressly set
forth in this Agreement, and pursuant to the indemnities contained herein;
(g) BUYER'S ACCESS TO INFORMATION. Such Seller acknowledges
that Buyer and Buyer's affiliates may have received material non-public
information concerning Issuer (the "BUYER UNDISCLOSED INFORMATION") in the
course of its due diligence investigation of Issuer conducted in connection with
the negotiation of the Merger Agreement. Such Seller acknowledges that the Buyer
Undisclosed Information may have caused Buyer to enter into this Agreement to
purchase the Assigned Rights and, if disclosed, could have a material affect on
such Seller's decision to transfer the Assigned Rights;
(h) INSOLVENCY. Such Seller is not insolvent or otherwise in
any condition that would entitle any creditor of such Seller, any person acting
or purporting to act under authority of any legislation pertaining to bankruptcy
or creditors' rights or any banking authority, to require that such Seller
divest itself of the purchase price in respect of the assignment hereunder;
(i) ACCREDITED INVESTOR. Such Seller is an "accredited
investor" as that term is defined in Rule 501 ("RULE 501") of Regulation D
promulgated under the United States Securities Act of 1933, as amended,
(together with the rules and regulations promulgated thereunder, the "SECURITIES
ACT");
(j) NO PRIOR ASSIGNMENT. Such Seller has made no prior
transfer of its Assigned Rights or of any interest therein;
(k) UNPAID OBLIGATIONS. There is no payment obligation of any
kind (whether fixed, contingent, conditional or otherwise) in respect of its
Assigned Rights that such Seller is or shall be required to pay or otherwise
perform that such Seller has not paid or otherwise
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performed in full; and
(l) NO BROKER OR FINDER. Such Seller has not engaged,
consented to or authorized any broker, finder or intermediary to act on its
behalf, directly or indirectly, as a broker, finder or intermediary in
connection with the transactions contemplated by this Agreement other than
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corp.
Section 4. BUYER'S REPRESENTATIONS. Buyer hereby represents
and warrants to each Seller and such Seller's successors and assigns, as of the
date hereof, and as of the Effective Time with respect to such Seller that:
(a) POWER AND AUTHORITY. Buyer has full power and authority to
purchase such Seller's Assigned Rights and to enter into and perform this
Agreement. This Agreement (i) has been duly authorized, executed and delivered
by Buyer (ii) is (subject to the application of bankruptcy, insolvency or
receivership laws to Buyer and equitable principles generally) legal, valid and
binding and enforceable against Buyer in accordance with its terms;
(b) NO OTHER CONSENTS. No Consent is required to be received
by Buyer from or made by Buyer with any Governmental Authority or any other
person in connection with the execution or delivery by Buyer of this Agreement
or the purchase by Buyer of such Seller's Assigned Rights pursuant to this
Agreement other than such Consents that have heretofore been obtained or made or
will be obtained or made prior to the Effective Time;
(c) NO VIOLATIONS. Buyer's execution and delivery of this
Agreement, the consummation by Buyer of the transactions contemplated hereby and
compliance by Buyer with any of the provisions hereof will not (i) conflict with
or result in any breach of any provision of the Certificate of Incorporation,
Bylaws or other charter document of Buyer, (ii) result in a violation or breach
of, or constitute (with or without notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration) under
any of the terms, conditions or provisions of, any material contract, agreement,
note, indenture, mortgage, lease, license or other arrangement or understanding
to which Buyer is a party or by which Buyer or any of its assets or property is
subject, (iii) result in the creation or imposition of any material lien or
encumbrance of any kind upon any of the assets of Buyer or any subsidiary of
Buyer or (iv) violate any applicable provision of any statute, law, rule or
regulation or any order, decision, injunction, judgment, award or decree to
which Buyer or its assets or properties are subject;
(d) LITIGATION. There is no suit, action or proceeding,
pending or, to the knowledge of Buyer, threatened, nor is there any judgment,
decree, injunction, rule or order of any Governmental Authority against Buyer or
any of its affiliates which, individually or in the aggregate, would reasonably
be expected adversely to affect Buyer's ability to perform its obligations under
this Agreement.
(e) SOPHISTICATED BUYER. (i) Buyer is a sophisticated buyer
with respect to the Assigned Rights, and has adequate information concerning the
business and financial condition
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of Issuer to make an informed decision regarding the purchase of the Assigned
Rights and has independently and without reliance upon such Seller and based on
such information as Buyer has deemed appropriate, made its own analysis and
decision to acquire the Assigned Rights and to enter into this Agreement; (ii)
such Seller has not given any investment advice or rendered any opinion as to
whether the purchase of the Assigned Rights is prudent; and (iii) Buyer
acknowledges that if the Effective Time with respect to such Seller shall occur,
the transfer of the Assigned Rights by such Seller hereunder is irrevocable and
without any recourse to such Seller except with respect to breaches of
representations, warranties and covenants expressly set forth in this Agreement,
and pursuant to the indemnities contained herein;
(f) SELLER'S ACCESS TO INFORMATION. Buyer acknowledges that
such Seller may possess material non-public information concerning Issuer (the
"SELLER UNDISCLOSED INFORMATION") by virtue of such Seller's relationship to
Issuer. Buyer acknowledges that the Seller Undisclosed Information may have
caused such Seller to enter into this Agreement to transfer the Assigned Rights
and, if disclosed, could have a material affect on Buyer's decision to purchase
the Assigned Rights;
(g) BUSINESS ACTIVITIES. Buyer is a newly formed Delaware
corporation and has conducted no business, except such business activities as
are contemplated by or incident to the performance of Buyer's obligations under
the Merger Agreement, the Offer and this Agreement;
(h) ACCREDITED INVESTOR; RESALE. Buyer, together with its
affiliates, is an "accredited investor" within the meaning of Rule 501. Buyer
acknowledges that the Assigned Rights are not being acquired with a view to
resale that would violate any applicable securities law;
(i) NO BROKER OR FINDER. Buyer has not engaged, consented to
or authorized any broker, finder or intermediary to act on its behalf, directly
or indirectly, as a broker, finder or intermediary in connection with the
transactions contemplated by this Agreement.
(j) FINANCING ARRANGEMENTS. Buyer and Tyco (including for this
purpose one or more of its wholly-owned subsidiaries) have funds available to
them sufficient to enable Buyer to purchase such Seller's Assigned Rights in
accordance with the terms of this Agreement.
Section 5. COVENANTS OF SELLERS. Each Seller, severally and
not jointly, covenants and agrees that unless a Termination Event shall have
occurred:
(a) AGREEMENT TO VOTE SHARES. At every meeting of the
stockholders or of the holders of any class or series of stock of Issuer called
with respect to any of the following, and at every adjournment thereof, and on
every action or approval by written consent of the stockholders or of the
holders of any class or series of stock of Issuer with respect to any of the
following, such Seller shall cast any votes that it may have at the time against
(x) approval of any Company Takeover Proposal (as defined in the Merger
Agreement), (y) any merger
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(including, without limitation, an Alternative Transaction (as defined in the
Merger Agreement)), consolidation, sale of assets requiring stockholder approval
or the approval of the holders of any class or series of stock, reorganization
or recapitalization of Issuer, with any other person other than Buyer or its
affiliates, and (z) any liquidation or winding up of Issuer (each of the
foregoing is hereinafter referred to as an "OPPOSING PROPOSAL");
(b) AGREEMENT NOT TO SOLICIT. Such Seller will not, and will
not permit any entity under its control to: (1) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) with
respect to an Opposing Proposal or otherwise encourage or assist any person in
taking or planning any action that would constitute an Opposing Proposal; or (2)
initiate a vote or action by written consent of Issuer's stockholders or of the
holders of any class or series of stock with respect to an Opposing Proposal;
(c) AGREEMENT NOT TO TRANSFER SHARES. Such Seller shall not
effect a transfer or any pledge or other encumbrance of any of its Assigned
Rights to or in favor of any person, other than to an affiliate of such Seller
who shall have agreed in a writing, in form and substance acceptable to Buyer in
its sole discretion, for the benefit of and delivered to Buyer, to be bound by
all provisions of this Agreement applicable to such Seller.
(d) TENDER OF COMMON STOCK. Such Seller agrees to tender all
shares of Common Stock now owned or hereafter acquired by such Seller in the
Offer.
Section 6. COVENANT OF BUYER. Buyer covenants and agrees that
Buyer or its affiliate shall make a prompt public announcement of: (i) the
Merger Agreement is terminated in accordance with its terms; or (ii) the Offer
expires without Buyer having purchased any shares of Common Stock thereunder; or
(iii) the consideration payable to the holders of the Common Stock in the Offer
and the Merger has been increased to an amount in excess of $9.25.
Section 7. NO OTHER REPRESENTATIONS. Each Seller and Buyer
acknowledge and represent and warrant to each other that no party has made any
representation or warranty, whether express or implied, of any kind or character
except as expressly set forth or implied in this Agreement.
Section 8. PAYMENT AND DELIVERY BY SELLERS. Each Seller,
severally and not jointly, agrees to cause any distributions with respect to
Preferred Stock ("DISTRIBUTIONS") owned by such Seller paid or delivered after
the Effective Time to be paid or delivered directly to Buyer. In the event that
a Seller nevertheless receives any such Distributions after the Effective Time
with respect to such Seller, (i) such Seller agrees to accept the same as agent
on behalf of and for the sole benefit of Buyer, and to pay or deliver the same
forthwith to Buyer (free of any withholding, set-off or deduction of any kind)
in the same form received, with the endorsement of such Seller, without
recourse, when necessary or appropriate; and (ii) no Seller shall have any
legal, equitable or beneficial interest in such Distributions.
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Section 9. INDEMNITIES. (a) Each Seller, severally and not
jointly, agrees to indemnify, defend and hold Buyer and its officers, directors,
employees, agents and controlling persons and their successors and assigns
(collectively, the "BUYER INDEMNITEES") harmless from and against any and all
expenses, losses, claims, judgments, damages, liabilities or obligations
(collectively, "LIABILITIES") which are incurred by the Buyer Indemnitees or any
of them, including without limitation reasonable attorneys' fees and expenses,
caused by, or in any way resulting from or relating to such Seller's breach of
any of the representations, warranties, covenants or agreements of such Seller
set forth in this Agreement.
(b) Buyer agrees to indemnify, defend and hold each Seller and
such Seller's officers, directors, employees, agents and controlling persons and
their successors and assigns (collectively, the "SELLER INDEMNITEES") harmless
from and against any and all Liabilities which are incurred by or threatened
against the Seller Indemnitees or any of them, including without limitation
reasonable attorneys' fees and expenses, caused by, or in any way resulting from
or relating to Buyer's breach of any of the representations, warranties,
covenants or agreements of Buyer set forth in this Agreement.
Section 10. FILINGS AND FURTHER ASSURANCES. From and after the
Effective Time, each Seller agrees to take such other reasonable steps as may be
requested by Buyer to effect the transfer of the Assigned Rights of such Seller
to Buyer. Each party further agrees to execute and deliver, or to cause to be
executed and delivered, all such instruments (including all necessary
endorsements) and to take all such action as any other party may reasonably
request in order to effectuate the intent and purposes, and to carry out the
terms, of this Agreement.
Section 11. CERTAIN AGENT MATTERS. (a) Agent shall receive,
hold and distribute the Preferred Stock Documentation in accordance with
SECTIONS 1 and 2.
(b) Agent shall be entitled to rely, and shall be protected in
acting in reliance, upon any instructions and directions furnished pursuant to
and in accordance with this Agreement.
(c) Agent shall be entitled to treat as genuine, and as the
document it purports to be, any letter, paper, notice or other document
furnished to it by Buyer or any Seller and believed by Agent to be genuine and
to have been signed and presented by the proper party or parties, without being
required to determine the authenticity or correctness of any fact stated
therein, the propriety or validity thereof, or the authority or authorization of
the party or parties making and/or delivering the same to do so.
(d) Buyer and Issuer, jointly and severally, agree to pay
Agent upon demand all reasonable expenses incurred by Agent in connection with
its duties hereunder, including any reasonable attorneys fees or other legal
costs, expenses and disbursements.
(e) Neither Agent nor any of its directors, officers,
partners, employees, controlling persons or agents, direct or indirect, shall be
liable to Buyer or any Seller or any other person or entity for or in respect to
any loss, claim, damage, or liability resulting from, or
8
arising out of, any action taken or omitted by Agent in connection with this
Agreement, except for any loss, claim, damage or liability which shall finally
be adjudicated to be the result of gross negligence or willful bad faith on the
part of Agent or any such director, officer, partner, employee, controlling
person or agent.
(f) Buyer and Issuer, jointly and severally, covenant and
agree to reimburse, indemnify and hold harmless Agent from and against any
and all claims, actions, judgments, damages, losses, liabilities, costs,
transfer or other taxes, and expenses (including without limitation
reasonable attorneys' fees and expenses) incurred or suffered by Agent, or to
which Agent may become subject and not resulting from any negligence, bad
faith or willful misconduct on Agent's part, arising out of or incident to
this Agreement or the administration of Agent's duties hereunder, or arising
out of or incident to Agent's compliance with the instructions set forth
herein or with any instructions delivered to Agent pursuant hereto, or as a
result of Agent defending itself against any claim or liability resulting
from Agent's actions as Agent, including any claim against Agent by any
Seller, which covenant and agreement shall survive the termination hereof.
Agent hereby represents that Agent will notify each of Buyer and Issuer by
letter, or facsimile confirmed by letter, of any receipt by Agent of a
written assertion of a claim against Agent, or any action commenced against
Agent, within ten (10) business days after Agent's receipt of written notice
of such assertion or Agent's having been served with the summons or other
first legal process giving information as to the nature and basis of any such
action. However, Agent's failure to so notify Buyer and Issuer shall not
operate in any manner whatsoever to relieve Buyer and Agent from any
liability which they may have on account of this SUBSECTION 11(f) if no
prejudice occurs. At their election, Buyer and/or Issuer may assume the
conduct of Agent's defense in any such action or claim at their joint cost
and expense. In the event that Buyer and/or Issuer elect to assume the
defense of any such action or claim and confirm to Agent in writing that the
indemnity provided for in this SUBSECTION 11(f) applies to such action or
claim, neither Buyer nor Issuer shall be liable for the fees and expenses of
any counsel thereafter retained by Agent.
(g) This Agreement sets forth exclusively the duties and
obligations of Agent with respect to any and all matters pertinent to its acting
as such hereunder. Agent shall not be obligated to refer to, and shall not be
bound by, any other document or agreement.
Section 12. MISCELLANEOUS. (a) COSTS AND FEES. Except as
otherwise expressly provided for herein, each party to this Agreement shall bear
its own costs and expenses, including, but not limited to, attorneys' fees and
expenses, in connection with the transactions contemplated hereby.
(b) INTEGRATION. This Agreement constitutes the complete
agreement of the parties hereto with respect to the subject matters referred to
herein and supersedes all prior or contemporaneous negotiations, promises,
covenants, agreements or representations of every nature whatsoever with respect
thereto, all of which have become merged and finally integrated into this
Agreement. Notwithstanding the foregoing, the confidentiality letters between
Issuer and each Seller shall survive the execution and delivery of this
Agreement.
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(c) AMENDMENT. This Agreement cannot be amended, modified or
supplemented except by an instrument in writing executed by the parties hereto
that are to be bound thereby. Furthermore, this Agreement cannot be amended to
increase the purchase price payable to any Seller to greater than $1,400 per
share of Preferred Stock together with accrued and unpaid dividends to and
including the date of the Effective Time without such increased purchase price
being offered to each Seller.
(d) NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
in person, by facsimile, receipt confirmed, or on the next business day when
sent by overnight courier or on the third succeeding business day when sent by
registered or certified mail (postage prepaid, return receipt requested) to
Agent or Buyer at the following addresses or to any Seller at the address set
forth on such Seller's signature page hereto (or at such other address for a
party as shall be specified by like notice):
(i) if to Agent, to:
American Stock Transfer Company
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
with a copy to:
American Stock Transfer Company
0000 00xx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
(ii) if to Buyer, to:
x/x Xxxx Xxxxxxxxxxxxx (US) Inc.
Xxx Xxxx Xxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
Attention: Xxxx X Xxxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
with a copy to
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
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000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Confirm: (000) 000-0000.
(e) CHOICE OF LAW, CHOICE OF FORUM. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to any conflicts of laws provisions thereof. Each party to this
Agreement hereby irrevocably consents to the jurisdiction of the United States
Court for the Southern District of New York and the courts of the State of New
York located in the City of New York (collectively, the "COURTS") in any action
to enforce, interpret or construe any provision of this Agreement or of any
other agreement or document delivered in connection with this Agreement, and
also hereby irrevocably waives any defense of improper venue, forum non
conveniens or lack of personal jurisdiction to any such action brought in those
Courts. Each party further irrevocably agrees that any action to enforce,
interpret or construe any provision of this Agreement will be brought only in
such Courts. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(f) SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable harm would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. Accordingly the parties further agree that each party shall
be entitled to injunctions or restraining orders to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any of
the Courts, this being in addition to any other remedy to which they are
entitled at law or in equity.
(g) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which when so executed shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
(h) BUSINESS DAY. The term "BUSINESS DAY" means any day other
than a day on which the commercial banking institutions in the City of New York,
Borough of Manhattan are authorized or required by law to remain closed.
(i) BINDING EFFECT; ASSIGNMENT. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns. Nothing, including
without limitation the delivery of the Preferred Stock Documentation to Buyer,
Seller or Agent in accordance with SECTIONS 1 or 2, shall relieve any party from
any liability for such party's willful breach of this Agreement or under the
indemnification provisions of SECTION 9. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any Seller prior
to the Effective Time without the prior written consent of Buyer. Buyer may
assign its rights, interest and obligations hereunder to any other wholly-owned
direct or indirect subsidiary of Tyco, provided
11
that the provisions of the Guarantee immediately following the signature pages
hereto shall apply to such other subsidiary.
(j) THIRD PARTIES. Nothing contained in this Agreement or in
any instrument or document executed by any party in connection with the
transactions contemplated hereby shall create any rights in, or be deemed to
have been executed for the benefit of, any person that is not a party hereto or
thereto or a successor or permitted assign of such a party; PROVIDED HOWEVER,
that (i) the parties hereto specifically acknowledge that the provisions of
SECTION 9 hereof are intended to be for the benefit of, and shall be enforceable
by, the Buyer Indemnitees and the Seller Indemnitees and (ii) Tyco shall be
deemed a third party beneficiary of this Agreement with respect to the rights of
Buyer.
Section 13. CONSENT. Each Seller irrevocably consents to any
necessary amendment, modification and/or waiver of (x) Section 8.1 of the
Preferred Stock Purchase Agreement, dated as of February 2, 1998 (the "INITIAL
PURCHASE AGREEMENT"), to provide that neither this Agreement or the Merger
Agreement, nor the transactions contemplated hereby or thereby, shall be deemed
to violate or impair the ability of Issuer to perform its obligations under any
provision of the Initial Purchase Agreement and (y) Section 4H of the
Certificate of Designations of the Preferred Stock to provide that in no event
shall the amount payable to the holder of any share of Preferred Stock as a
result of the consummation of the Offer or the merger contemplated by the Merger
Agreement be other than $1,400 per share of Preferred Stock together with
accrued and unpaid dividends to and including the date of the Effective Time.
Such consent shall be effective immediately prior to the Effective Time. Each
Seller's consent contained in this SECTION 13 shall be void and of no effect if
a Termination Event shall occur with respect to such Seller without such
Seller's Assigned Rights being transferred to Buyer.
Section 14. EFFECTIVENESS. This Agreement shall not be
effective unless it is executed by Buyer and by the holders of not less than
seventy-five percent (75%) in principal amount of the Preferred Stock and the
Guarantee annexed hereto is executed by Tyco.
12
[SIGNATURE PAGES AND GUARANTEE FOLLOW]
13
IN WITNESS WHEREOF, the parties have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
stated above.
T16 ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
ALARMGUARD HOLDINGS, INC.
signing solely with respect to
SUBSECTIONS 11(d) and (f)
By: /s/ Xxxxxxx X. XxxXxxxxxx
----------------------------------
Name: Xxxxxxx X. XxxXxxxxxx
Title: Chairman, CEO
[SIGNATURE PAGES OF SELLERS AND GUARANTEE FOLLOW]
14
SIGNATURE PAGE OF SELLER
TO
PREFERRED STOCK PURCHASE AGREEMENT
[NAME OF SELLER]
By:
-------------------------------
Name:
Title:
Number of shares of
Series A Preferred Stock:
---------------------------
Number of shares of
Series B Preferred Stock:
---------------------------
Wire Payment Instructions:
Bank
-------------------------
ABA No.
-------------------------
Account No.
-------------------------
Account Name
-------------------------
Address for Notices:
-------------------------
-------------------------
-------------------------
Facsimile No.:
---------------------
Confirm No.:
---------------------
Attention:
---------------------
with a copy to:
-------------------------
-------------------------
-------------------------
Facsimile No.:
---------------------
Confirm No.:
---------------------
Attention:
---------------------
15
GUARANTEE
Tyco International Ltd., a Bermuda company, hereby guarantees the full and
timely performance by Buyer of each and every obligation of Buyer or any
permitted assignee of Buyer under the foregoing Agreement. This is a guaranty of
payment and performance, and not of collection, and Tyco International Ltd.
acknowledges and agrees that this guarantee is unconditional, and no release or
extinguishment of the obligations or liabilities of Buyer or its permitted
assignee under this Agreement, whether by reason of bankruptcy or otherwise,
shall affect the continuing validity and enforceability of this guarantee.
The provisions of Section 11 of the Agreement shall apply to this Guarantee
mutatis mutandum, except that the address for notices and other communications
to Tyco International Ltd. is:
Tyco International Ltd.
The Xxxxxxx Building
00 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx XX00 Xxxxxxx
Xxxxxxxxx: Secretary
Telecopy: (000) 000-0000
Confirm: (000) 000-0000
TYCO INTERNATIONAL LTD.
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Corporate Counsel
G-1
SCHEDULE I *
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
SELLER SHARES OF SERIES A SHARES OF SERIES B PURCHASE PRICE
PREFERRED STOCK PREFERRED STOCK
--------------------------------------------------------------------------------------------
Ziff Asset Manage- 7,250 $10,150,000.00
ment, L.P.
--------------------------------------------------------------------------------------------
Canaan Equity L.P. 5,000 7,000,000.00
--------------------------------------------------------------------------------------------
BF Partners 400 560,000.00
--------------------------------------------------------------------------------------------
Xxxx Xxxxxxxxxxx 100 140,000.00
--------------------------------------------------------------------------------------------
Xxxxx Xxxxxxxxx 75 105,000.00
--------------------------------------------------------------------------------------------
Xxxxxxx XxxXxxxxxx 125 175,000.00
--------------------------------------------------------------------------------------------
Exeter Capital 2,500 3,500,000.00
Partners IV, L.P.
--------------------------------------------------------------------------------------------
Aetna Life Insurance 5,000 7,000,000.00
Company
--------------------------------------------------------------------------------------------
Advance Capital 1,726 2,416,400.00
Offshore Partners
--------------------------------------------------------------------------------------------
Advance Capital 5,524 7,733,600.00
Partners, L.P.
--------------------------------------------------------------------------------------------
Xxxxxxx Associates, 2,000 2,800,000.00
L.P.
--------------------------------------------------------------------------------------------
OZ Master Fund, Ltd. 2,000 2,800,000.00
--------------------------------------------------------------------------------------------
Xxxxxx Brothers 5,000 7,000,000.00
Capital Partners III,
L.P.
--------------------------------------------------------------------------------------------
IBJ Xxxxxxxx Bank & 200 280,000.00
Trust Company, NY
--------------------------------------------------------------------------------------------
Granite Properties 1,500 2,100,000.00
Management Corp.
--------------------------------------------------------------------------------------------
Westgate 2,000 2,800,00.00
International, L.P.
--------------------------------------------------------------------------------------------
Credit Suisse 200 280,000.00
--------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx 100 140,000.00
--------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
* Purchase price does not include accrued and unpaid dividends.
