SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[X] Preliminary Proxy Statement
[ ] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
[ ] Confidential, for use of the Commission only as permitted by Rule 14a-6
(e)(2)
EXTECH Corporation
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[ ] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
1) Title of each class of securities to which transaction applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11: (Set forth the amount on which the
filing fee is calculated and state how it was determined)
4) Proposed maximum aggregate value of transaction:
5) Total fee paid:
[x] Fee paid previously with preliminary materials:
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement
number, or the form or schedule and the date of its filing.
1) Amount previously paid:
2) Form, Schedule or Registration Statement no.:
3) Filing Party:
4) Date Filed:
<PAGE>
PRELIMINARY PROXY MATERIALS
EXTECH CORPORATION
The Financial Center at Mitchel Field
90 Merrick Avenue
East Meadow, New York 11554
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON FEBRUARY 25, 1999
To the Stockholders of EXTECH Corporation:
NOTICE IS HEREBY GIVEN that the Annual Meeting of Stockholders (the
"Meeting") of EXTECH Corporation, a Delaware corporation (the "Company" or
"EXTECH"), will be held on February 25, 1999 at The Financial Center at Mitchel
Field, 90 Merrick Avenue, 9th Floor, East Meadow, New York 11554, at the hour of
10:00 a.m., for the following purposes:
1. To elect three directors of the Company for the coming year. In the
event of stockholder approval of Proposal 2, it is contemplated that Leon
Lapidus, a director of the Company, will resign his position, and two new
directors, Kevin Lang and Abraham Weinzimer, will be appointed. It is also
contemplated that a fifth director, Robert M. Wallach, will be appointed
concurrently with the appointment of Messrs. Lang and Weinzimer as directors.
Such appointments of Messrs. Lang, Weinzimer and Wallach will be made by the
Board of the Directors without further stockholder action.
2. To approve the Agreement, dated as of May 8, 1998, by and among the
Company, Morton L. Certilman, Jay M. Haft, Kevin Lang and Abraham Weinzimer, as
amended (the "DCAP Agreement"), and the consummation of the transactions
contemplated thereby (collectively, the "DCAP Acquisition"). Pursuant to the
DCAP Acquisition, among other things (a) EXTECH will acquire all of the
outstanding stock of Dealers Choice Automotive Planning Inc. ("DCAP"), a company
that is owned by Messrs. Lang and Weinzimer, as well as interests in other
companies that are wholly-owned or partially-owned by Messrs. Lang and
Weinzimer, (b) EXTECH will issue an aggregate of 3,300,000 shares of its Common
Stock ("Common Shares") to Messrs. Lang and Weinzimer, (c) Messrs. Certilman,
Haft, Lang and Weinzimer will purchase an aggregate of 1,402,000 Common Shares
from EXTECH, (d) Messrs. Certilman, Haft, Lang and Weinzimer will purchase an
aggregate of 1,800,000 Common Shares from a stockholder of the Company, (e)
EXTECH will lend monies to Messrs. Lang and Weinzimer to allow them to make the
purchases of their portion of the 1,800,000 shares, (f) Messrs. Certilman, Haft,
Lang and Weinzimer will enter into employment agreements with the Company and
will be granted stock options, and (g) the size of the Board of Directors of
EXTECH will be increased to four, Mr. Lapidus will resign as a director of the
Company and Messrs. Lang and Weinzimer will be appointed as directors. The size
of the
<PAGE>
Board is contemplated to be increased further to five at the closing of the DCAP
Acquisition, and Mr. Wallach is to be appointed as a director. A copy of the
DCAP Agreement is attached as Appendix A to the accompanying Proxy Statement.
3. Subject to obtaining stockholder approval of the DCAP Acquisition,
to approve an amendment to the Company's Certificate of Incorporation to change
the name of the Company to "DCAP Group, Inc."
4. Subject to obtaining stockholder approval of the DCAP Acquisition,
to approve an amendment to the Company's Certificate of Incorporation to
increase the number of authorized Common Shares from 10,000,000 to 25,000,000.
5. Subject to obtaining stockholder approval of the DCAP Acquisition,
to approve an amendment to the Company's Certificate of Incorporation pursuant
to which, if action is to be taken by the stockholders of EXTECH without a
meeting, then the written consent of the holders of all of the shares of capital
stock of the Company entitled to vote on such action will be required. However,
if the action has been authorized by the Board of Directors, then the action may
be taken by the written consent of the holders of not less than a majority of
the shares of capital stock entitled to vote on such action.
6. To ratify the adoption of the Company's 1998 Stock Option Plan.
7. To transact such other business as may properly come before the
Meeting.
Only stockholders of record at the close of business on February 2,
1999 are entitled to notice of and to vote at the Meeting or at any adjournment
thereof.
Brian K. Ziegler
Secretary
East Meadow, New York
February __, 1999
================================================================================
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, PLEASE VOTE, DATE AND SIGN THE
ENCLOSED PROXY, WHICH IS SOLICITED BY THE BOARD OF DIRECTORS OF THE COMPANY, AND
RETURN IT IN THE PRE- ADDRESSED ENVELOPE PROVIDED FOR THAT PURPOSE. ANY
STOCKHOLDER MAY REVOKE HIS PROXY AT ANY TIME BEFORE THE MEETING BY WRITTEN
NOTICE TO SUCH EFFECT, BY SUBMITTING A SUBSEQUENTLY DATED PROXY OR BY ATTENDING
THE MEETING AND VOTING IN PERSON.
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
Summary of the DCAP Acquisition........................................... 1
Soliciting, Voting and Revocability of Proxy.............................. 9
Forward-Looking Statements................................................ 11
Executive Compensation.................................................... 11
Security Ownership of Certain Beneficial Owners and Management............ 13
Certain Relationships and Related Transactions............................ 14
Proposal 1: Election of Directors........................................ 15
Proposal 2: The DCAP Acquisition......................................... 19
EXTECH and DCAP....................................................... 19
Background of and Reasons for the DCAP Acquisition.................... 23
Valuation of Sterling Foster Shares................................... 27
Fairness Opinion...................................................... 29
The DCAP Agreement.................................................... 37
Acquisition of Common Shares..................................... 37
Loans............................................................ 39
Employment Agreements............................................ 40
Buy-Out Upon Death............................................... 44
Restrictive Covenant Agreements.................................. 44
Composition of the Board of Directors............................ 45
Agreement as to Voting........................................... 45
Sale of EXTECH Shares............................................ 46
Representations and Warranties................................... 46
Pre-Closing Covenants............................................ 47
No Negotiations.................................................. 48
Conditions to Closing............................................ 48
Closing of the DCAP Agreement.................................... 49
Indemnification.................................................. 50
Termination...................................................... 50
Amendment........................................................ 51
Regulatory Requirements.......................................... 51
Accounting Treatment.................................................. 51
Federal Income Tax Consequences....................................... 51
Eagle................................................................. 54
Stock Ownership Following the DCAP Acquisition and Eagle Issuance..... 54
Price Range of Common Shares.......................................... 56
Pro Forma Financials Statements....................................... 57
Management's Discussion and Analysis or Plan of Operation............. 65
Recommendation and Required Vote...................................... 70
Proposal 3: Amendment to Certificate of Incorporation to Change Name..... 70
Proposal 4: Amendment to Certificate of Incorporation to Increase Number
of Authorized Common Shares............................................. 70
<PAGE>
Proposal 5: Amendment to Certificate of Incorporation to Require Unanimous,
Rather than Majority, Written Consent of Stockholders in Lieu of a Meeting
Under Certain Circumstances............................................. 72
Proposal 6: The 1998 Stock Option Plan................................... 73
Independent Public Accountants............................................ 78
Stockholders Proposals.................................................... 79
Other Business............................................................ 80
Incorporation of Certain Information by Reference......................... 80
Financial Statements...................................................... F-1
Appendix A - DCAP Agreement, together with amendments thereto
Appendix B - Opinion of Capitalink, L.C.
<PAGE>
EXTECH CORPORATION
The Financial Center at Mitchel Field
90 Merrick Avenue
East Meadow, New York 11554
----------------------------
PROXY STATEMENT
-----------------------------
SUMMARY OF DCAP ACQUISITION
The following is a summary of the material provisions of the DCAP
Agreement (as defined below) and certain other information contained elsewhere
herein. The summary is not intended to be a complete description of such matters
and is subject to and qualified in its entirety by reference to the more
detailed information contained elsewhere herein and the full text of the DCAP
Agreement (inclusive of the exhibits and Schedules A and B thereto, but
exclusive of other schedules thereto) attached hereto as Appendix A.
DCAP Agreement
EXTECH Corporation (the "Company" or "EXTECH"), Morton L. Certilman,
Jay M. Haft, Kevin Lang and Abraham Weinzimer (Messrs. Lang and Weinzimer are
sometimes referred to collectively as the "DCAP Shareholders") have entered into
an Agreement, dated as of May 8, 1998, as amended (the "DCAP Agreement"), with
respect to the acquisition by the Company from the DCAP Shareholders of all of
the issued and outstanding shares of Common Stock of Dealers Choice Automotive
Planning Inc. ("DCAP") as well as interests held by them in certain entities
affiliated with DCAP as reflected below. The DCAP Shareholders own (i) all of
the issued and outstanding shares of Common Stock of DCAP, (ii) all of the
issued and outstanding shares of Common Stock of certain other corporations as
set forth on Schedule A to the DCAP Agreement, as amended, and (iii) at least
50% of the issued and outstanding shares of Common Stock of certain other
corporations as set forth on Schedule B to the DCAP Agreement, as amended
(collectively, the "DCAP Companies"). The stockholders of the Company are being
asked to approve the DCAP Agreement, including the transactions contemplated
thereby, as summarized below (collectively, the "DCAP Acquisition").
Messrs. Certilman and Haft have voting power over an aggregate of 3,517,286
shares of Common Stock of EXTECH ("Common Shares"), or approximately 62.9% of
the Company's outstanding Common Shares. Messrs. Certilman and Haft intend to
vote in favor of approval of the DCAP Acquisition. In such event, the required
stockholder approval will be obtained. See "Proposal 2: The DCAP Acquisition -
EXTECH and DCAP; and - Recommendation and Required Vote."
Concurrently with the execution of the DCAP Agreement, EXTECH loaned to
DCAP the amount of $311,000. Previously, EXTECH had loaned to DCAP the aggregate
amount of $439,000.
<PAGE>
Since the execution of the DCAP Agreement, EXTECH has loaned DCAP the additional
aggregate net amount of $135,000. See "Proposal 2: The DCAP Acquisition - The
DCAP Agreement - Loans."
At the closing of the DCAP Agreement, and pursuant to the terms
thereof, the following transactions and events, among others, are contemplated
to occur:
(i) Messrs. Lang and Weinzimer will transfer all of the outstanding shares
of Common Stock of DCAP as well as all of their holdings in the other
DCAP Companies (generally ranging between 50% and 100%) (collectively,
the "DCAP Shares") to the Company, and the Company will issue
1,650,000 Common Shares to each of them (an aggregate of 3,300,000
Common Shares). As of ______, 1999, the closing price for the Common
Shares of EXTECH, as reported by the NASD OTC Electronic Bulletin
Board (the "Bulletin Board"), was $_____ per share. Based upon such
price, the 3,300,000 Common Shares to be issued to the DCAP
Shareholders would have an aggregate value of $_______. See "Proposal
2: The DCAP Acquisition - The DCAP Agreement - Acquisition of Common
Shares."
(ii) Messrs. Lang and Weinzimer will each purchase from EXTECH 475,000
Common Shares (an aggregate of 950,000 Common Shares) at a purchase
price of $.25 per share. See "Proposal 2: The DCAP Acquisition - The
DCAP Agreement - Acquisition of Common Shares."
(iii)Messrs. Certilman and Haft (or their designees) will each purchase
from EXTECH 226,000 Common Shares (an aggregate of 452,000 Common
Shares) at a purchase price of $.25 per share. See "Proposal 2: The
DCAP Acquisition - The DCAP Agreement - Acquisition of Common Shares."
(iv) Messrs. Certilman, Haft, Lang and Weinzimer (or their designees) will
each purchase 450,000 Common Shares of EXTECH (an aggregate of
1,800,000 Common Shares) (the "Sterling Foster Shares"), beneficially
owned by Sterling Foster Holding Corp. ("Sterling Foster") and held by
Mr. Certilman as voting trustee pursuant to a voting trust agreement
with Sterling Foster, at a purchase price of $.25 per share. Mr.
Certilman will not receive any portion of such purchase price. The
purchase of the Sterling Foster Shares is conditioned upon the
termination of the voting trust agreement. See "Proposal 2: The DCAP
Acquisition - The DCAP Agreement -Acquisition of Common Shares."
(v) EXTECH will lend to each of Messrs. Lang and Weinzimer the sum of
$112,500 (an aggregate of $225,000) (the "Closing Loans"). The
proceeds of the Closing Loans will be used by Messrs. Lang and
Weinzimer solely for the purpose of acquiring their respective
Sterling Foster Shares. See
2
<PAGE>
"Proposal 2: The DCAP Acquisition - The DCAP Agreement - Acquisition
of Common Shares."
(vi) Messrs. Certilman, Haft, Lang and Weinzimer will enter into employment
agreements with EXTECH and will be granted stock options in connection
therewith. See "Proposal 2: The DCAP Acquisition - The DCAP Agreement
- Employment Agreements."
(vii)The size of the Board of Directors of EXTECH will be increased to
four, Leon Lapidus will resign as a director of the Company, and
Messrs. Lang and Weinzimer will be appointed as directors thereof. See
"Proposal 2: The DCAP Acquisition - Composition of the Board of
Directors; and - Eagle" for a discussion of a contemplated further
increase in the size of the Board to five and the appointment of a
designee of Eagle Insurance Company ("Eagle") as a member thereof.
The following illustrates the material features of the contemplated
transaction:
[The paper format document uses a flow chart to diagram the contemplated
transactions among the parties. The flow chart uses a table and arrows to
indicate the payor, payee, amount and direction of payment of consideration
among the parties.]
<TABLE>
==================================================================================================================
<CAPTION>
EXTECH
==================================================================================================================
from Lang and Weinzimer from EXTECH to from Certilman from EXTECH to
to EXTECH Lang and Weinzimer and Haft to EXTECH Certilman and Haft
======================== =================================== ================== ========================
<S> <C> <C> <C> <C> <C> <C>
$9,500 DCAP $225,000 950,000 3,300,000 $113,000 452,000
Cash Shares Loan EXTECH EXTECH EXTECH
& Shares Shares Shares
$228,000
Note
=============================================================== ===============================================
LANG AND WEINZIMER CERTILMAN AND HAFT
=============================================================== ===============================================
from Sterling Foster from Lang and Weinzimer from Sterling Foster from Certilman and Haft
to Lang and Weinzimer to Sterling Foster to Certilman and Haft to Sterling Foster
=========================== ============================ ===================== =======================
900,000 $225,000 900,000 $225,000
EXTECH EXTECH
Shares Shares
==================================================================================================================
STERLING FOSTER
==================================================================================================================
</TABLE>
3
<PAGE>
EXTECH and DCAP
EXTECH's primary business is the operation of the International Airport
Hotel in San Juan, Puerto Rico. See "Proposal 2: The DCAP Acquisition - EXTECH
and DCAP."
The DCAP Companies are engaged primarily in the following business: (i)
retail automotive, motorcycle, boat, life, business and homeowner's insurance
brokerage; (ii) income tax return preparation; and (iii) automobile club
services for roadside emergencies. The DCAP Companies also provide services with
regard to the obtaining of premium financing, and intend to provide similar
services with regard to personal and automobile loans. The DCAP Companies intend
to provide direct insurance premium financing services and mortgage brokerage
services to their clients. There are an aggregate of 57 "DCAP" locations in the
New York metropolitan area. Of such locations, four are wholly-owned by Messrs.
Lang and Weinzimer, 25 are owned partially by Messrs. Lang and Weinzimer
(generally ranging for the two of them between 50% and 67%) and partially by
other persons who generally operate the location, and 28 are operated by
franchisees, in which Messrs. Lang and Weinzimer have no equity interest. The
franchisor, DCAP Management Corp., however, is wholly owned by Messrs. Lang and
Weinzimer and is one of the DCAP Companies whose shares are to be transferred to
EXTECH as the closing of the DCAP Agreement.
See "Proposal 2: The DCAP Acquisition - EXTECH and DCAP."
Background of and Reasons for the DCAP Acquisition
EXTECH's primary business activity is the operation of the
International Airport Hotel in San Juan, Puerto Rico (the "Hotel"). The Company
has recently experienced declining revenues and increased losses. There is also
an ongoing dispute between the Company and the owner of the San Juan
International Airport (the "Airport") in which the Hotel is situated as to the
length of the Company's lease. A litigation is currently pending as to this
matter. Further, the Hotel faces the threat of potential competition from
additional Airport hotels that could be built as well as from Puerto Rican
beachfront hotels. Based upon these factors, the Board of Directors of the
Company determined to consider alternative businesses.
The Company became aware of DCAP when in 1994 it became a client of
Certilman Balin Adler & Hyman, LLP, a law firm in which the Company's President,
Morton L. Certilman, is a partner (such firm has not, however, represented DCAP
or the DCAP Shareholders in connection with the DCAP Acquisition). Mr.
Certilman's scrutiny of the DCAP Companies was further heightened after his
daughter became a joint venture partner in four of the DCAP Companies. After
EXTECH considered a number of other acquisition candidates in the sports
franchise field and determined not to proceed, and following Mr. Certilman's
analysis of DCAP in its operations, he recommended that the Board consider an
acquisition transaction. Following a due diligence investigation of the DCAP
Companies, the Board concluded that, despite the losses sustained by the DCAP
Companies, based upon EXTECH's management skills and cash resources, together
with the implementation of certain costs controls and expansion into
contemplated new businesses, such as income tax return preparation and premium
financing, there was a significant likelihood of
4
<PAGE>
profitability. Based upon such determination, on November 26, 1997, the Board
unanimously authorized the execution and delivery of a letter of intent with
respect to the acquisition of the DCAP Shares and a concurrent loan to DCAP in
the amount of $325,000. On December 10, 1997, the Board received a written
valuation report from Margolin Winer & Evens LLP to the effect that, as of
October 31, 1997 and based upon and subject to certain matters stated therein,
the Sterling Foster Shares had a fair market value of approximately $.20 per
share. See "Proposal 2: The DCAP Acquisition - Valuation of Sterling Foster
Shares." On May 7, 1998, the Board unanimously authorized the execution and
delivery of the DCAP Agreement.
On December 22, 1998, the Board received a written opinion from
Capitalink, L.C. ("Capitalink"), as of May 8, 1998 (the date of the DCAP
Agreement), to the effect that, as of the date of such opinion and based upon
and subject to certain matters stated therein, from a financial point of view,
the consideration to be offered pursuant to the DCAP Agreement is fair to
EXTECH. The full text of the written opinion of Capitalink, which sets forth the
assumption made, matters considered and limitations on the review undertaken, is
attached as Appendix B to this Proxy Statement and should be read carefully in
its entirety. The opinion of Capitalink is directed to the Board of Directors of
the Company, addresses only the fairness of the consideration offered from a
financial point of view, and does not constitute a recommendation to any
stockholder as to how such stockholder should vote on Proposal 2. See "Proposal
2: The DCAP Acquisition - Fairness Opinion."
Risks and Disadvantages of DCAP Acquisition
The stockholders of the Company should be aware that the DCAP
Acquisition carries certain risks, including substantial dilution of the equity
interest of the current stockholders of the Company, the need for additional
capital for the Company to undertake planned growth and diversification, and
significant competition in the businesses of the DCAP Companies.
Currently Messrs. Certilman and Haft have voting control over 62.9% of the
outstanding Common Shares of the Company. See "Securities Ownership of Certain
Beneficial Owners and Management." Following the closing of the DCAP Acquisition
and the issuance of Common Shares to Eagle, Messrs. Certilman, Haft, Lang and
Weinzimer and Eagle will own approximately 82.6% of the Company's outstanding
Common Shares. Accordingly, such holders, if acting together, will have the
ability to control the election of the Company's Board of Directors and other
matters submitted to the Company's stockholders for approval. The additional
Common Shares are being issued based upon a valuation of $.25 per share to
Messrs. Certilman, Haft, Lang and Weinzimer (see "Proposal 2: The DCAP
Acquisition-Valuation of Sterling Foster Shares") and $.67 per share to Eagle
notwithstanding that the closing bid price for the Company's Common Shares on
May 8, 1998 (the date of the DCAP Agreement) and October 2, 1998 (the date of
the Eagle Subscription Agreement) were $.6875 and $.875 per share, respectively,
as reported by the Bulletin Board. See "Proposal 2: The DCAP
Acquisition-Fairness Opinion."
It is contemplated that, concurrently with the closing of the DCAP
Agreement, the Company will consummate the issuance of Common Shares to Eagle
and will receive approximately $1,000,000 in equity financing as a result of
such issuance. The Company believes that such
5
<PAGE>
proceeds, together with anticipated revenues from operations, will be sufficient
to permit the Company to continue to conduct operations in the manner currently
conducted by it and the DCAP Companies (including the proposed expansion plans
as discussed under "EXTECH and DCAP - DCAP - Description of Business"). However,
unless additional financing in an amount in excess of $1,000,000 is obtained,
the Company will be unable to initiate certain increased advertising efforts
that DCAP believes is necessary for growth. No definitive additional financing
arrangements are in place and no assurances can be given that any such financing
will be available upon commercially reasonable terms or otherwise; however, the
Company has entered into a letter of intent with a placement agent with respect
to a contemplated private equity financing. See "Proposal 2: The DCAP
Acquisition-Management's Discussion and Analysis or Plan of Operation - EXTECH."
DCAP competes with numerous well established companies that offer
insurance brokerage services (including GEICO and Allstate), income tax
preparation services (including H&R Block) and premium finance services. Many of
these companies have substantially greater financial, technical and other
resources than DCAP. Certain of these competitors have the financial resources
necessary to enable them to withstand substantial price competition. See
"Proposal 2: The DCAP Acquisition - Background of and Reasons for the DCAP
Acquisition - Risks and Disadvantages of DCAP Acquisition."
Accounting Treatment
The DCAP Acquisition will be accounted for as a purchase. See "Proposal
2 - The DCAP Acquisition - Pro Forma Financial Statements."
Federal Income Tax Consequences
EXTECH will not recognize any gain or loss on the issuance of the
Common Shares to the DCAP Shareholders or Messrs. Certilman and Haft.
The consolidated net operating loss carryovers of EXTECH and the DCAP
Companies may be materially limited for tax purposes as a result of the
transaction. See "Proposal 2: The DCAP Acquisition - Federal Income Tax
Consequences" for a discussion of these and other Federal income tax
consequences of the transaction.
Eagle
The Company and Eagle have entered into the Eagle Subscription
Agreement which provides for the issuance and sale by the Company to Eagle of
1,486,893 Common Shares for an aggregate purchase price of approximately
$1,000,000, or $.67 per share. The issuance is to be made concurrently with the
closing of the DCAP Agreement. Eagle is a New Jersey insurance company
wholly-owned by The Robert Plan, one of the largest insurers of assigned-risk
drivers in the United States. Pursuant to separate agency agreements between
certain DCAP Companies and certain insurance company subsidiaries of The Robert
Plan, such DCAP Companies have been appointed agents of the insurance companies
with regard to the offering of automobile and other insurance products. Pursuant
to the Eagle Subscription Agreement, at the closing, the size of the Board of
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<PAGE>
Directors of the Company is to be increased to five and Robert M. Wallach,
Eagle's designee and the President and Chief Executive Officer of The Robert
Plan, is to be appointed as a member of the Board of Directors. See "Proposal 2:
The DCAP Acquisition - Eagle."
Summary Historical and Pro Forma Financial Data
Summary Historical Financial Data
The following tables set forth certain historical financial information
for EXTECH and the DCAP Companies which are incorporated by reference into, or
presented elsewhere in, this Proxy Statement.
Summary Historical Financial Data - EXTECH
The summary financial information set forth below for EXTECH for the
years ended December 31, 1997 and 1996 and for the nine month periods ended
September 30, 1998 and 1997 is derived from the more detailed consolidated
financial statements incorporated by reference herein. Such information should
be read in conjunction with such financial statements and the notes thereto. The
consolidated financial statements for the years ended December 31, 1997 and 1996
were audited by Holtz Rubenstein & Co., LLP. The information for the nine month
period ended September 30, 1998 is not necessarily indicative of operating
results for the entire fiscal year.
Statement of Operations
Nine Months Ended September 30, Year Ended December 31,
1998 1997 1997 1996
---- ---- ---- ----
Revenues $723,226 $761,519 $996,618 $1,118,647
Net (loss) (75,109) (86,788) (143,992) (5,099)
Balance Sheet
September 30, 1998 December 31, 1997
------------------ -----------------
Cash and cash equivalents $ 406,275 $1,040,389
Notes and other receivables 822,438 355,316
Working capital 1,086,927 1,150,732
Total assets 1,512,699 1,622,332
Total stockholders' equity 1,243,110 1,318,219
Summary Historical Financial Data - DCAP Companies
The summary financial information set forth below for the DCAP
Companies for the years ended December 31, 1997 and 1996 and for the nine month
periods ended September 30, 1998 and 1997 is derived from the more detailed
combined financial statements included elsewhere herein. Such information
should be read in conjunction with such financial statements and the notes
thereto. The combined financial statements for the years ended December 31, 1997
and 1996 were audited by Deutsch, Marin & Company, LLP (except that the
statement of cash flows for the year ended
7
<PAGE>
December 31, 1996 is unaudited). The information for the nine month period ended
September 30, 1998 is not necessarily indicative of operating results for the
entire fiscal year.
Statement of Operations
Nine Months Ended September 30, Year Ended December 31,
1998 1997 1997 1996
Revenues $6,173,809 $6,374,963 $8,486,540 $9,337,955
Sale of book
of business - 535,334 535,334 -
Net income (loss) (365,485) 38,300 59,094 (353,595)
Balance Sheet
September 30, 1998 December 31, 1997
Cash and cash equivalents $ 93,226 -0-
Working capital (deficiency (1,443,175) (753,164)
Total assets 2,397,867 2,372,809
Total stockholders' (deficit) (1,444,246) (1,075,561)
Summary Pro Forma Financial Data
The following summary of financial information is based on the
unaudited pro forma condensed consolidated financial statements of EXTECH and
the DCAP Companies appearing elsewhere herein and should be read in conjunction
with those statements and the related notes thereto. The summary pro forma
financial data gives effect to the consummation of the DCAP Acquisition and the
issuance of Common Shares to Eagle.
EXTECH and DCAP Companies
Statement of Operations
Nine Months Ended Year Ended
September 30, 1998 December 31, 1997
Revenues $6,874,035 $9,505,158
Net (loss) (494,094) (155,898)
Net (loss) per share (0.04) (0.01)
Balance Sheet
September 30, 1998
Cash and cash equivalents $1,393,219
Working capital 736,537
Total assets 6,407,682
Total stockholders' equity 3,186,828
8
<PAGE>
SOLICITING, VOTING AND REVOCABILITY OF PROXY
This Proxy Statement is being mailed to all stockholders of record of
EXTECH at the close of business on February 2, 1999 in connection with the
solicitation by the Board of Directors of Proxies to be voted at the Annual
Meeting of Stockholders (the "Meeting") to be held on February 25, 1999 at 10:00
a.m., local time, or any adjournment thereof. The Proxy and this Proxy Statement
were mailed to stockholders on or about____________, 1999.
All shares represented by Proxies duly executed and received will be
voted on the matters presented at the Meeting in accordance with the
instructions specified in such Proxies. Proxies so received without specified
instructions will be voted as follows:
(1) FOR the nominees named in the Proxy to EXTECH's Board of Directors,
subject to modification thereto in the event of stockholder approval of Proposal
2 (see "Proposal 1: Election of Directors");
(2) FOR the approval of the DCAP Acquisition;
(3) FOR the approval (subject to stockholder approval of the DCAP
Acquisition) of an amendment to the Company's Certificate of Incorporation to
change the name of the Company to "DCAP Group, Inc.";
(4) FOR the approval (subject to stockholder approval of the DCAP
Acquisition) of an amendment to the Company's Certificate of Incorporation to
increase the number of authorized Common Shares from 10,000,000 to 25,000,000;
(5) FOR the approval (subject to stockholder approval of the DCAP
Acquisition) of an amendment to the Company's Certificate of Incorporation
pursuant to which, if action is to be taken by the stockholders of the Company
without a meeting, then the written consent of the holders of all of the shares
of capital stock of the Company entitled to vote on such action will be
required. However, if the action has been authorized by the Board of Directors,
then the action may be taken by the written consent of the holders of not less
than a majority of the shares of capital stock entitled to vote on such action;
and
(6) FOR the ratification of the adoption of the Company's 1998 Stock
Option Plan.
The Board does not know of any other matters that may be brought before
the Meeting nor does it foresee or have reason to believe that Proxy holders
will have to vote for substitute or alternate nominees to the Board. In the
event that any other matter should come before the Meeting or any nominee is not
available for election, the persons named in the enclosed Proxy will have
discretionary authority to vote all Proxies not marked to the contrary with
respect to such matters in accordance with their best judgment.
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The total number of Common Shares outstanding and entitled to vote as
of February 2, 1999 was 5,591,367. The Common Shares are the only class of
securities of the Company entitled to vote on all matters presented to the
stockholders of the Company, each share being entitled to one vote.
The Company's Certificate of Incorporation provides for cumulative
voting of shares for the election of directors, which means that each
stockholder has the right to cumulate his votes and give to one or more nominees
as many votes as equals the number of directors to be elected (three) multiplied
by the number of shares he is entitled to vote. A stockholder may therefore cast
his votes for one nominee or distribute them among two or all three of the
nominees. A majority of the Common Shares outstanding and entitled to vote as of
February 2, 1999, or 2,795,684 Common Shares, must be present at the Meeting in
person or by proxy in order to constitute a quorum for the transaction of
business. Only stockholders of record as of the close of business on February 2,
1999 will be entitled to vote. With regard to the election of directors, votes
may be cast in favor or withheld. The directors shall be elected by a plurality
of the votes cast in favor. Accordingly, based upon there being three nominees,
each person who receives one or more votes will be elected as a director. Votes
withheld in connection with the election of one or more of the nominees for
director will not be counted as votes cast for such individuals.
Stockholders may expressly abstain from voting on Proposals 2, 3, 4, 5
and 6 by so indicating on the Proxy. Abstentions and broker non-votes will be
counted for purposes of determining the presence or absence of a quorum for the
transaction of business. Abstentions are counted as present in the tabulation of
votes on each of the proposals presented to stockholders. Broker non-votes are
not counted for the purpose of determining whether a particular proposal has
been approved. Since Proposals 2 and 6 require the affirmative approval of a
majority of the Common Shares present in person or represented by proxy at the
Meeting and entitled to vote (assuming a quorum is present at the Meeting),
abstentions will have the effect of a negative vote while broker non-votes will
have no effect. Since Proposals 3, 4 and 5 require the approval of a majority of
the outstanding Common Shares of the Company, abstentions and broker non-votes
will have the effect of a negative vote.
Any person giving a Proxy in the form accompanying this Proxy Statement
has the power to revoke it at any time before its exercise. The Proxy may be
revoked by filing with EXTECH written notice of revocation or a fully executed
Proxy bearing a later date. The Proxy may also be revoked by affirmatively
electing to vote in person while in attendance at the Meeting. However, a
stockholder who attends the Meeting need not revoke a Proxy given and vote in
person unless the stockholder wishes to do so. Written revocations or amended
Proxies should be sent to EXTECH at The Financial Center at Mitchel Field, 90
Merrick Avenue, 9th Floor, East Meadow, New York 11554, Attention: Corporate
Secretary.
The Proxy is being solicited by the EXTECH Board of Directors. EXTECH
will bear the cost of the solicitation of Proxies, including the charges and
expenses of brokerage firms and other custodians, nominees and fiduciaries for
forwarding Proxy materials to beneficial owners of EXTECH shares. Solicitations
will be made primarily by mail, but certain directors, officers or
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employees of EXTECH may solicit Proxies in person or by telephone, telecopier or
telegram without special compensation.
A list of stockholders entitled to vote at the Meeting will be
available for examination by any stockholder for any purpose germane to the
Meeting, during ordinary business hours, for ten days prior to the Meeting, at
the offices of the Company, 90 Merrick Avenue, East Meadow, New York 11554, and
also during the whole time of the Meeting for inspection by any stockholder who
is present.
Stockholders of the Company do not have any appraisal rights under
Delaware law in connection with the DCAP Acquisition. Therefore, even if a
stockholder votes against the DCAP Acquisition, he will not be entitled to seek
payment from the Company for his shares of Common Stock.
FORWARD-LOOKING STATEMENTS
Certain information contained herein and/or incorporated by reference
in this Proxy Statement includes "forward-looking statements" within the meaning
of the Private Securities Litigation Reform Act of 1995, and is subject to the
safe harbor created by that act. EXTECH cautions readers that certain important
factors may affect EXTECH's actual results and could cause such results to
differ materially from any forward-looking statements which may be deemed to
have been made in this Proxy Statement or which are otherwise made by or on
behalf of EXTECH. For this purpose, any statements contained in this Proxy
Statement that are not statements of historical fact may be deemed to be
forward-looking statements. Without limiting the generality of the foregoing,
words such as "may," "will," "expect," "believe," "anticipate," "intend,"
"could," "estimate," or "continue" or the negative variations thereof or
comparable terminology are intended to identify forward-looking statements.
Factors which may affect EXTECH's results include, but are not limited to, the
risks and uncertainties discussed under "Proposal 2: The DCAP Acquisition -
Risks and Disadvantages of DCAP Acquisition."
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table sets forth certain information concerning the
compensation of Morton L. Certilman, President of the Company, for the fiscal
years ended December 31, 1998, 1997 and 1996. No other executive officer of the
Company as of December 31, 1998 had a total salary and bonus for the year then
ended in excess of $100,000.
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- --------------------------------------------------------------------------------
Annual
Compensation
- --------------------------------------------------------------------------------
Name and Principal All Other
Position Year Salary Compensation
- --------------------------------------------------------------------------------
Morton L. Certilman 1998 $150,000 -0-*
President
----------------------------------------------------
1997 $150,000 -0-*
----------------------------------------------------
1996 $101,250 -0-*
- --------------------------------------------------------------------------------
* Excludes fees payable during 1996, 1997 and 1998 by the Company to
Certilman Balin Adler & Hyman, LLP, a law firm of which Mr. Certilman is a
member. See "Certain Relationships and Related Transactions."
Option Grants
No grants of stock options were made to Mr. Certilman during the fiscal
years ended December 31, 1997 or 1998.
The DCAP Agreement contemplates the grant of stock options to Messrs.
Certilman, Haft, Lang and Weinzimer at the closing thereof. See "Proposal 2: The
DCAP Acquisition - The DCAP Agreement - Employment Agreements."
Aggregated Option Exercises and Fiscal Year-End Option Value
Mr. Certilman did not exercise any options during the years ended
December 31, 1997 or 1998 and held no options as of December 31, 1997 or 1998.
Employment Contracts and Termination of Employment and Change-in-Control
Arrangements
There are currently no employment agreements, termination arrangements,
or change-in- control arrangements in place between the Company and any of its
officers or directors.
The DCAP Agreement contemplates that, at the closing thereof, Messrs.
Certilman, Haft, Lang and Weinzimer will be offered employment agreements, each
of which will contain payment- upon-termination provisions. See "Proposal 2: The
DCAP Acquisition - The DCAP Agreement Employment Agreements."
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
The following table sets forth certain information as of December 31,
1998 regarding the beneficial ownership of the Company's Common Shares by (i)
each person who the Company believes to be the beneficial owner of more than 5%
of the Company's outstanding Common Shares, (ii) each present director, (iii)
each person listed in the Summary Compensation Table under "Executive
Compensation," and (iv) all of the Company's present executive officers and
directors as a group. Reference is made to "Proposal 2: The DCAP Acquisition -
Stock Ownership Following the DCAP Acquisition and Eagle Issuance" for a
discussion of certain material changes that will occur in the stockholdings of
the Company as a result of the consummation of the DCAP Acquisition.
Name and Address Number of Shares Approximate
of Beneficial Owner Beneficially Owned Percent of Class
Morton L. Certilman........... 2,611,893(1)(2)(3) 46.7%
The Financial Center
at Mitchel Field
90 Merrick Avenue
East Meadow, New York
Adam R. Lieberman............. 1,800,000(2)(4) 32.2%
1 Bay Club Drive
Bayside, New York
Jay M. Haft................... 905,393(1)(5) 16.3%
201 S. Biscayne Blvd.
Suite 3000
Miami, Florida
Leon Lapidus.................. 20,000 *
111 Sinnott Road
Scarborough Ontario
M1L 4S6 Canada
All executive officers
and directors as a group
(4 persons).................... 3,562,286 (3)(5)(6) 63.7%
* Less than 1%.
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(1) Each of Messrs. Certilman and Haft has previously filed a Schedule 13D and
amendments thereto under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), with respect to their respective equity interests in
the Company. In view of their intention to consult with each other with
respect to the acquisition, voting and disposition of their respective
shares, Messrs. Certilman and Haft may be deemed a group. Accordingly, the
group of Messrs. Certilman and Haft beneficially owns 3,517,286 Common
Shares. Such amount represents approximately 62.9% of the outstanding
Common Shares of the Company. However, each of Messrs. Certilman and Haft
independently makes his own decisions with respect to the acquisition,
voting and disposition of the Common Shares directly owned by him. Further,
neither Mr. Certilman nor Mr. Haft has any economic interest in the Common
Shares directly owned by the other.
(2) Pursuant to a certain Amended and Restated Voting Trust Agreement, dated as
of December 30, 1996, between Sterling Foster Holding Corp. ("Sterling
Foster") and Mr. Certilman, as voting trustee (the "Voting Trust
Agreement"), Sterling Foster transferred voting control over all 1,800,000
Common Shares of the Company it presently owns to Mr. Certilman during the
three year term of the Voting Trust Agreement. Beneficial ownership of such
shares is contemplated to be transferred, and the Voting Trust Agreement is
contemplated to terminate, at the closing of the DCAP Agreement. See
"Proposal 2: The DCAP Acquisition - The DCAP Agreement - Acquisition of
Common Shares."
(3) Includes 1,800,000 shares held by Mr. Certilman pursuant to the Voting
Trust Agreement and 360,000 shares held in a retirement trust for his
benefit.
(4) Represents shares held by Mr. Certilman as voting trustee as described in
footnote (2). The Company has been advised that Mr. Lieberman is the
President and sole stockholder of Sterling Foster.
(5) Includes 12,500 shares held in a retirement trust for the benefit of Mr.
Haft.
(6) Includes 5,000 shares held in a retirement trust for the benefit of an
executive officer and 20,000 shares held by such executive officer's wife.
Such executive officer disclaims beneficial ownership of the shares owned
by his wife.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
In June 1996, the Company issued 3,200,000 Common Shares at a price of
$.25 per share for a total subscription price of $800,000. Of such amount,
$450,000 was paid by Sterling Foster for the purchase of 1,800,000 shares and
$175,000 was paid by each of Mr. Certilman and Mr. Haft for the purchase of
700,000 shares each. Except as a purchaser of Common Shares, neither Sterling
Foster nor Mr. Lieberman was involved as an underwriter or otherwise in
connection with the transaction.
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As discussed in "Proposal 2: The DCAP Acquisition," the Company has
entered into an agreement with respect to the acquisition of all of the issued
and outstanding shares of Common Stock of DCAP as well as interests in certain
entities affiliated with DCAP. Four of the DCAP Companies are one-half owned by
Mr. Certilman's daughter; however, her interest in such entities is not
contemplated to be purchased, and no EXTECH Common Shares or other consideration
is to be issued to her in connection with the DCAP Acquisition.
Certilman Balin Adler & Hyman, LLP, a law firm of which Mr. Certilman
is a member, serves as counsel to the Company. It is presently anticipated that
such firm will continue to represent the Company and/or its affiliates and will
receive fees for its services at rates and in amounts not greater than would be
paid to unrelated law firms performing similar services.
PROPOSAL 1: ELECTION OF DIRECTORS
Three directors are to be elected at the Meeting to serve until the
next annual meeting of stockholders and until their respective successors shall
have been elected and have qualified. See, however, the discussion of Proposal 2
below.
The Company's Certificate of Incorporation provides for cumulative
voting of shares for the election of directors, which means that each
stockholder has the right to cumulate his votes and give to one or more nominees
as many votes as equals the number of directors to be elected (three) multiplied
by the number of shares he is entitled to vote. A stockholder may therefore cast
his votes for one nominee or distribute them among two or all three of the
nominees.
As discussed under Proposal 2 with respect to the approval of the DCAP
Acquisition, in the event of stockholder approval of Proposal 2 and the
consummation of the transactions contemplated by the DCAP Agreement, it is
contemplated that, at the closing, the size of the Board of Directors of EXTECH
will be increased to four, Mr. Lapidus will resign as a director of the Company,
and Kevin Lang and Abraham Weinzimer, the stockholders of DCAP, will be
appointed as members of the Board of Directors. In addition, as discussed under
such Proposal 2, it is contemplated that, concurrently with the closing of the
DCAP Agreement, pursuant to a Subscription Agreement dated October 2, 1998
between the Company and Eagle Insurance Company ("Eagle"), a wholly-owned
subsidiary of The Robert Plan Corporation ("The Robert Plan") (the "Eagle
Subscription Agreement"), the Company will issue and sell 1,486,893 Common
Shares to Eagle, the size of the Board of Directors will be further increased to
five and Robert M. Wallach, the President and Chief Executive Officer of The
Robert Plan, will be appointed as a member of the Board of Directors. Such
actions, if taken, will be done so by the Board of Directors pursuant to the
provisions of the Company's By-Laws without further stockholder action.
Biographical information with respect to Messrs. Lang, Weinzimer and Wallach is
set forth below. Except for the securities of the Company to be issued to
Messrs. Lang and Weinzimer pursuant to the terms of the DCAP Agreement and to
Eagle pursuant to the terms of the Eagle Subscription Agreement (see "Proposal
2: The DCAP Acquisition"), to the knowledge of the Company, neither Mr. Lang nor
Mr. Weinzimer nor Mr. Wallach beneficially owns, or upon the consummation of the
DCAP Agreement or the Eagle
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<PAGE>
Subscription Agreement will own, any securities of the Company. In addition, to
date, except for the DCAP Agreement and the Eagle Subscription Agreement and the
transactions contemplated thereby (see "Proposal 2: The DCAP Acquisition"),
neither Mr. Lang nor Mr. Weinzimer nor Mr. Wallach has been employed by,
received any compensation from, engaged in any transaction with or had any other
relationship with the Company.
Nominees for Directors
All three of the nominees are currently directors of EXTECH. The
following table sets forth each nominee's age as of December 31, 1998, the
positions and offices presently held by him with the Company, and the year in
which he became a director. The Board recommends a vote FOR all nominees. The
persons named as Proxies intend to vote cumulatively all shares represented by
Proxies equally among all nominees for election as directors, unless Proxies are
marked to the contrary.
Positions and Offices
Presently Held Director
Name Age the Company Since
Morton L. Certilman 66 President and Director 1989
Jay M. Haft 63 Chairman of the Board 1989
Leon Lapidus 53 Director 1989
Morton L. Certilman has served as the Company's President since October
1989. Mr. Certilman has been engaged in the practice of law for more than the
past five years and is a member of the law firm of Certilman Balin Adler &
Hyman, LLP. Mr. Certilman is Chairman of the Long Island Regional Planning
Board, the Nassau County Coliseum Privitization Commission, and the
Northrop/Grumman Master Planning Council, and is a director of the Long Island
Association, the New Long Island Partnership and the Long Island Sports
Commission. Mr. Certilman has lectured extensively before bar associations,
builders' institutes, title companies, real estate institutes, banking and law
school seminars, The Practicing Law Institute, The Institute of Real Estate
Management and at annual conventions of such organizations as the National
Association of Home Builders, the Community Associations Institute and the
National Association of Corporate Real Estate Executives. He was a member of the
faculty of the American Law Institute/American Bar Association, as well as the
Institute on Condominium and Cluster Developments of the University of Miami Law
Center. Mr. Certilman has written various articles in the condominium field, is
the author of the New York State Bar Association Condominium Cassette and the
Condominium portion of the State Bar Association book on "Real Property Titles."
Mr. Certilman received an LL.B. degree, cum laude, from Brooklyn Law School.
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Jay M. Haft has served as the Company's Chairman of the Board since October
1989. Mr. Haft has been engaged in the practice of law for more than the past
five years and serves as counsel to Parker Duryee Rosoff & Haft. He was
previously a senior corporate partner of such firm (1989- 1994). Mr. Haft is a
strategic and financial consultant for growth stage companies. He is active in
international corporate finance, mergers and acquisitions, as well as in the
representation of emerging growth companies. He has actively participated in
strategic planning and fund raising for many high-tech companies, leading edge
medical technology companies and technical product, service and marketing
companies. Mr. Haft is a Managing General Partner of Gen Am "1" Venture Fund, an
international venture capital fund. Mr. Haft is also a director of numerous
public and private corporations, including Robotic Vision Systems, Inc., Noise
Cancellation Technologies, Inc., Encore Medical Corporation, PC Service Source,
Inc., DUSA Pharmaceuticals, Inc., Oryx Technology Corp., and Thrift Management,
Inc, all of whose securities are traded in the over-the- counter market, and
serves as Chairman of the Board of Noise Cancellation Technologies, Inc. Mr.
Haft is a past member of the Florida Commission for Government Accountability to
the People, and a national trustee and Treasurer of the Miami Ballet. Mr. Haft
received B.A. and LL.B. degrees from Yale University.
Leon Lapidus has been the President of the Mibro Group, a privately-held
importer, packager and distributor of hardware, for more than the past five
years. Mr. Lapidus received a B.A. degree from Hunter College and an M.B.A.
degree from the Bernard M. Baruch College of the City of New York.
Mr. Lapidus is the brother-in-law of Mr. Haft. Brian K. Ziegler, Secretary
of the Company, is Mr. Certilman's son-in-law. There are no other family
relationships among any of EXTECH's executive officers and directors.
Contemplated New Directors
DCAP
Kevin Lang, age 40, has served as President of DCAP since its inception in
1982. Mr. Lang also serves as an officer and director of each of the other DCAP
Companies.
Abraham Weinzimer, age 41, has served as Vice President of DCAP since its
inception in 1982. Mr. Weinzimer also serves as an officer and director of each
of the other DCAP Companies.
Eagle
Robert M. Wallach, age 46, has served as Chairman and Chief Executive
Officer of The Robert Plan since 1993. See "Proposal 2: The DCAP Acquisition -
Eagle."
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Services
Messrs. Certilman and Haft currently devote, and, in the event of the
DCAP Acquisition, pursuant to employment agreements contemplated to be entered
into with them, will continue to devote, part-time services to the Company.
Currently, Messrs. Certilman and Haft devote approximately 25% and 5% of their
business time to the activities of EXTECH. The employment agreements
contemplated to be entered into with them provides that they are to perform such
part-time services as are reasonably necessary for them to fulfill their
responsibilities as Chairman of the Board and Vice Chairman, respectively. The
employment agreements contemplated to be entered into with Messrs. Lang and
Weinzimer provide that they are to devote all of their business time and efforts
to activities involving the Company. See "Proposal 2: The DCAP Acquisition - The
DCAP Agreement - Employment Agreements."
Committees
The Audit Committee of the Board of Directors is responsible for (i)
recommending independent accountants to the Board, (ii) reviewing the Company's
financial statements with management and the independent accountants, (iii)
making an appraisal of the Company's audit effort and the effectiveness of the
Company's financial policies and practices and (iv) consulting with management
and the Company's independent accountants with regard to the adequacy of
internal accounting controls. The members of the Audit Committee currently are
Messrs. Certilman and Haft. See, however, "Proposal 2: The DCAP Acquisition -
Composition of the Board of Directors."
The Finance Committee of the Board of Directors is responsible for (i)
developing and analyzing plans for corporate expansion, examining and adjusting
the Company's capital structure and determining long-range financial
requirements and (ii) other matters relating to the financial affairs of the
Company. The members of the Finance Committee currently are Messrs. Certilman
and Haft. See, however, "Proposal 2: The DCAP Acquisition - Composition of the
Board of Directors."
The Company does not have any standing nominating or compensation
committees of the Board of Directors or committees performing similar functions.
These functions are currently performed by the Board as a whole.
Meetings
The Board of Directors of the Company held four meetings during the
Company's fiscal year ended December 31, 1997. All of the Company's directors
attended all such meetings. The Board acted on one occasion during such period
by unanimous written consent in lieu of a meeting. Neither the Audit Committee
nor the Finance Committee of the Board of Directors was in existence as of
December 31, 1997.
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Section 16(a) Beneficial Ownership Reporting Compliance
Section 16 of the Exchange Act ("Section 16") requires that reports of
beneficial ownership of Common Shares and changes in such ownership be filed
with the Securities and Exchange Commission (the "SEC") by Section 16 "reporting
persons," including directors, certain officers, holders of more than 10% of the
outstanding Common Shares and certain trusts of which reporting persons are
trustees. EXTECH is required to disclose in this Proxy Statement each reporting
person whom it knows to have failed to file any required reports under Section
16 on a timely basis during the fiscal year ended December 31, 1997. To the
Company's knowledge, based solely on a review of a copy of a Form 4 furnished to
it and written representations that no other reports were required, during the
fiscal year ended December 31, 1997, EXTECH's officers, directors and 10%
stockholders complied with all Section 16(a) filing requirements applicable to
them.
PROPOSAL 2: THE DCAP ACQUISITION
At the Meeting, the stockholders of the Company will consider and vote
upon a proposal to approve the DCAP Acquisition. A summary of the DCAP
Acquisition is included in this Proxy Statement beginning on the cover page
hereof.
EXTECH and DCAP
EXTECH
The Company's primary business is the operation, through its
wholly-owned subsidiary, IAH, Inc. ("IAH"), of the International Airport Hotel
in San Juan, Puerto Rico (the "Hotel"). The Hotel occupies the third and fifth
floors of the main terminal building at San Juan International Airport (the
"Airport"), and generally caters to commercial and tourist travelers in transit.
The operations of the Hotel are highly seasonal, with a disproportionate share
of its revenues generated during the first several months of the calendar year.
For further information, reference is made to Item 1 of the Company's Annual
Report on Form 10-KSB for the year ended December 31, 1997, as amended (the
"1997 Form 10-KSB"), which Item 1 is incorporated herein by reference. See also
"Background of and Reasons for the DCAP Acquisition."
The Company was incorporated in Delaware in 1961 under the name
Executive House, Inc. and changed its name to EXTECH Corporation in 1991. Its
executive offices are located at The Financial Center at Mitchel Field, 90
Merrick Avenue, 9th Floor, East Meadow, New York 11554, and its telephone number
is (516) 794-6300.
DCAP
General
The DCAP Companies are engaged primarily in the following businesses:
(i) retail automotive, motorcycle, boat, life, business and homeowner's
insurance brokerage; (ii) income tax
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return preparation; and (iii) automobile club for roadside emergencies. The DCAP
Companies also provide services with regard to the obtaining of premium
financing, and intend to provide similar services with regard to personal and
automobile loans. The DCAP Companies intend to provide direct insurance premium
financing services and mortgage brokerage services to their clients. There are
an aggregate of 57 "DCAP" locations in the New York metropolitan area. Of such
locations, four are wholly-owned by Messrs. Lang and Weinzimer (each a
"wholly-owned location"), 25 are owned partially by Messrs. Lang and Weinzimer
(generally ranging for the two of them between 50% and 67%) and partially by
other persons who generally operate the location (the "joint venture partner")
(each a "joint venture location"), and 28 are operated by franchisees (each a
"franchise"), in which Messrs. Lang and Weinzimer have no equity interest. The
franchisor, DCAP Management Corp., however, is wholly-owned by Messrs. Lang and
Weinzimer and is one of the DCAP Companies whose shares are to be transferred to
EXTECH at the closing of the DCAP Agreement. Since DCAP's inception, Mr. Lang
has served as its President and Mr. Weinzimer has been its Vice President.
DCAP was incorporated in New York in 1982; its executive offices are
located at 2545 Hempstead Turnpike, Suite 100, East Meadow, New York 11554 and
its telephone number is (516) 735-0900.
Description of Business
Insurance and Other Brokerage
Commissions and other amounts received in connection with the selling
of automobile insurance policies, as well as other types of property and
casualty insurance, represents approximately 95% of the revenues of the DCAP
Companies. Initially, the DCAP Companies specialized in offering assigned-risk
and nonstandard insurance policies. Assigned-risk and nonstandard policies are
issued after an analysis of such factors as the driver's accident record, the
kind of car being insured, the age and credit risk of the driver, where the
insured lives, and other items. Over the last several years, the DCAP Companies
have also been marketing and selling standard and preferred policies;
commissions and other amounts received in connection with the issuance of
standard and preferred policies now represents approximately 10% of their auto
insurance revenues. Because DCAP has insurance underwriting relationships with
several nationally known insurance carriers, including Chubb, Travelers,
Progressive Casualty, General Accident, and The Robert Plan (see "Eagle"),
serving as either brokers or agents, the DCAP Companies can offer their
customers many carrier and premium options.
The DCAP Companies have established a presence in all five New York
City boroughs, Westchester, Nassau and Suffolk Counties, New York and northern
New Jersey. Locations are selected to maximize the attraction of "walk-in"
retail customers, i.e., customers without an established relationship with the
DCAP Companies and who come to the store without an appointment. Such customers
constitute the majority of the DCAP Companies' business.
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In addition to automobile insurance brokerage, the DCAP Companies offer
property and casualty insurance for motorcycles and boats, life and mortgage
insurance, commercial property insurance, and homeowners' insurance. The DCAP
Companies also offer agency and brokerage services with regard to the obtaining
of premium financing as well as personal and automobile loans, and intend to
offer mortgage brokerage services.
Income Tax Return Preparation
Income tax return preparation services have been provided by a small
number of the DCAP Companies since 1997. The tax return preparation service
allows the DCAP Companies to offer an additional service to the walk-in
customers who comprise the bulk of their customer base, as well as to existing
customers. The participating DCAP Companies gather information from filers and
forward it to an unaffiliated third party, which processes the information,
generates returns to be submitted to the Internal Revenue Service and other
taxing authorities, manually or electronically files the returns and processes
any refunds. DCAP intends to use a wholly-owned subsidiary, 1-800- Income Tax,
Inc., as an intermediary between the various DCAP Companies and the third party
processor. DCAP management believes that the provision of this service not only
increases the revenues of the DCAP Companies, but also enhances their presence
in the various markets that they serve and aids in customer retention. DCAP
management expects that greater emphasis will be placed upon this business
operation in the near future.
Automobile Club
As a complement to the automobile insurance operations, the DCAP
Companies offer automobile club services for roadside emergencies. Memberships
are offered by the DCAP Companies for such services, and arrangements are made
with service stations and towing companies to fulfill service call requirements.
Premium Financing
Clients who purchase insurance policies are often unable to pay the
premium in a lump sum, or make the required down payment, and, therefore,
require financing. The DCAP Companies currently outsource premium financing for
more than 500 clients a month and expect that number to increase in the near
future. According to statistics from the Bureau of Labor Statistics of the U.S.
Department of Labor, while the cost of living averaged a 3.1% increase per year
from 1991 to 1995, the increase in the cost of automobile insurance was 5.7%
during the same period. Based upon the perceived need for premium financing, the
DCAP Shareholders formed Payments, Inc., a company that is wholly-owned by them
and licensed by the New York State Banking Department as a premium finance
agency. Approval of the New York State Banking Department of the acquisition by
the Company of Payments, Inc. (as part of the DCAP Acquisition) has been
obtained. It is anticipated by DCAP management that approximately $350,000
in capital will be utilized to initiate the planned premium finance business.
An additional $2,500,000 in credit availability is being sought in connection
therewith. Although no definitive
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commitments are in place, this credit availability is being sought from an
institutional lender. The contemplated financing terms include a secured
revolving credit facility in the amount of $2,500,000 and interest at a rate
equal to 1.5% in excess of the prime rate. The contemplated financing is
conditioned upon the consummation of the DCAP Acquisition, the issuance of
Common Shares to Eagle and an initial capitalization of Payments, Inc. by EXTECH
in the amount of $350,000. No assurance can be given that such credit facility
or other financing will become available to DCAP, or that, if such alternative
financing does become available, it will be on terms acceptable to DCAP.
Structure and Operations
As indicated above, of the 57 "DCAP" locations, four are wholly-owned
locations, 25 are joint venture locations and 28 are franchises. The joint
venture locations and franchises consist of both "conversion" operations, i.e.,
where an existing insurance brokerage with an established business becomes a
DCAP store, and "startup" operations, i.e., where an entrepreneur commences
business operations as a DCAP location. The wholly-owned locations are managed
by persons employed by the respective DCAP Company, the joint venture locations
are managed either by the joint venture partner or persons employed by the DCAP
Company, and the franchises are managed by or under the supervision of the
franchisee.
To promote consistency and efficiency, all DCAP Company managers
(including a joint venture partner, if a manager) are trained by DCAP. The DCAP
training program covers marketing and sales training, office and logistics
training, and extensive computer training, including training with regard to the
software system described below.
DCAP provides the administrative services and functions of a "central
office" to the wholly-owned and joint venture locations. Among the services
rendered to the DCAP storefront locations are sales training, bookkeeping and
accounting, processing services and customer service functions provided
primarily in connection with insurance policy brokerage. DCAP has approximately
25 employees engaged in the provision of "central office" services. Franchises
operate without the assistance of DCAP's "central office" functions.
The DCAP staff also provides management support services that include
assistance with hiring of employees and the writing of local advertising, and
advice concerning appropriate potential carriers for particular customers. DCAP
also manages the cooperative advertising program in which all of the DCAP
Companies participate.
In addition to the above services, DCAP provides to the DCAP Companies
a direct business relationship with nationally-known and local insurance
carriers that would otherwise be beyond the reach of small, privately-owned
retail insurance operations. As a result, an individual DCAP Company can offer
policy and premium options to its customers that other local insurance
brokerages cannot. This direct relationship is enhanced by a software system,
known as the DCAP Management System ("DMS"), that provides a direct link to
certain carrier databases. DMS enables each DCAP Company to access policy
coverage and cost information, application requirements, and
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other kinds of information. It also enables the DCAP Companies' brokers to
search various databases to obtain pertinent information about potential
customers.
Strategy
DCAP's management seeks to achieve an increase in market share through
a two-pronged strategy of (i) increasing name recognition, and (ii) expanding
and diversifying the products and services offered by the DCAP Companies.
Increased name recognition will be pursued through the establishment of
additional DCAP storefront sites (both conversion and start-up types), combined
with increased marketing activities such as a proposed consumer education
newsletter. In addition, the cooperative advertising program will continue to
use the aggregated buying power of the DCAP Companies to advertise in various
editions of directories, in automobile sales and other publications and on the
radio. See "Background of and Reasons for the DCAP Acquisition - Risks and
Disadvantages of DCAP Acquisition."
The second goal, to increase and diversify the products and services
offered, will capitalize on the nature of the typical DCAP customer. It is
contemplated that such person, the "walk-in" customer, will be offered not only
a variety of automobile insurance products, but, as noted above, additional
types of insurance currently offered, including life, mortgage, commercial
property and homeowners' insurance, other brokerage services with regard to
personal and automobile loans, and other contemplated services, including an
income tax return processing program, a premium financing service and a mortgage
brokerage service.
Background of and Reasons for the DCAP Acquisition
The Company's primary business activity is the operation of the Hotel
in San Juan, Puerto Rico, through IAH, the Company's subsidiary. The decision of
the Company's Board of Directors to recommend stockholder approval of the DCAP
Acquisition has been reached after careful consideration of several factors and
circumstances concerning its current business as well as the business operated
by the DCAP Companies.
Declining Performance
The Company has recently experienced declining revenues and increased
losses. Total revenues were $723,226 for the nine months ended September 30,
1998 as compared to $761,519 for the comparable period in 1997, and $996,618 for
the fiscal year ended December 31, 1997 as compared to $1,118,647 for the fiscal
year ended December 31, 1996. Included within such revenue figures were room
rental and other departmental revenues for the Hotel of $656,640 for the first
nine months of 1998 as compared to $713,939 for the comparable 1997 period, and
$895,238 for the fiscal year ended December 31, 1997 as compared to $936,976 for
the fiscal year ended December 31, 1996. In addition, the Company incurred net
losses of $75,109 for the nine months ended September 30, 1998, $143,992 for the
fiscal year ended December 31, 1997 and $5,099 for the fiscal year ended
December 31, 1996.
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The Lease - Dispute with Puerto Rico Ports Authority as to its Length
There is an ongoing dispute between the Company and the Puerto Rico
Ports Authority (the "Ports Authority"), the owner of the San Juan International
Airport in which the Hotel is situated, as to the length of IAH's lease. On July
22, 1988, IAH entered into a lease agreement with the Ports Authority pursuant
to which the Ports Authority granted IAH a lease to operate the Hotel for five
years until June 30, 1993, plus, at the option of IAH, an additional five year
term to end June 30, 1998 (subject to agreement as to the rental amount payable,
which the parties agreed to negotiate in good faith).
In 1992, in accordance with the lease agreement, IAH exercised its
right for a five year extension of its lease. At the time, the Ports Authority
was uncertain as to whether it wished to build a new hotel in the parking lot of
the Airport or upgrade the existing Hotel (located in the Airport terminal) and,
therefore, requested that IAH accept a 30 month extension of the then existing
term. IAH agreed to a 30 month extension and signed a supplemental lease
agreement with the Ports Authority in May 1992 extending the lease term to
December 31, 1995. IAH is of the belief that, pursuant to the supplemental lease
agreement, it retained the option to continue the lease for a period of five
years to December 31, 2000.
In July 1993, the Assistant Director of Operations of the Ports
Authority forwarded to IAH a letter containing the terms of a proposed ten year
lease extension which IAH approved, signed and returned to the Ports Authority.
Although the letter setting forth the terms of the extension agreement with IAH
does not make the Ports Authority's approval conditional upon the approval of
its Board of Directors, the Ports Authority has taken such position and, since
Board of Directors approval was not obtained, the Ports Authority has asserted
that the extension is not in effect. IAH is of the belief that a ten year
agreement has been entered into between IAH and the Ports Authority pursuant to
the foregoing or that, alternatively, it exercised its right to extend the term
of the lease to December 31, 2000.
Based upon IAH's refusal to acknowledge that, effective January 1,
1996, it occupied the Hotel on a month-to-month basis, in February 1996, the
Ports Authority requested that IAH vacate, surrender and deliver the premises by
February 29, 1996. Following the receipt of such request, on February 26, 1996,
IAH brought an action in the Superior Court of San Juan, Puerto Rico for
declaratory judgment and possessory injunction against the Ports Authority with
respect to the Hotel. The action seeks a declaratory judgment that IAH exercised
an option with respect to its lease for the Hotel for an extension of the term
of five years commencing on January 1, 1996 or, alternatively, that the Ports
Authority executed a new lease agreement for a ten year period commencing on
such date. Certain discovery proceedings have taken place, and the action is
still pending. IAH has continued to operate the Hotel during the pendency of the
action.
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Competition
The Hotel faces little direct competition currently, but there is no
assurance that this will continue. A number of years ago, the Ports Authority
requested proposals for the construction of an additional hotel at the Airport;
although the Ports Authority subsequently abandoned that plan and instead
determined to upgrade and expand the Hotel, it retains the authority to
construct additional Airport hotels, which would provide direct competition with
the Hotel. In addition, with a general decline in the tourism industry in Puerto
Rico, Puerto Rican beachfront hotels have in some instances reduced rates to the
extent that such beachfront hotel rates are competitive with those of the Hotel.
Board Determination
The Company's declining performance, the uncertainty caused by the
lawsuit and, to a lesser degree, the threat of competition with the Hotel led
the Board of Directors to consider alternative businesses. Prior to considering
DCAP as an acquisition candidate, the Company explored a number of opportunities
to acquire sports franchises. However, none of the contemplated transactions
closed either as a result of issues that arose during the Company's due
diligence investigation, a breakdown in negotiations or a failure to satisfy
closing conditions.
Following such efforts, Mr. Certilman turned his attention to the
possibility of a transaction with DCAP. The Company had become aware of DCAP
when in 1994 it became a client of Certilman Balin Adler & Hyman, LLP, the law
firm of which the Company's President, Morton L. Certilman, is a partner (such
firm has not, however, represented DCAP or the DCAP Shareholders in connection
with the DCAP Acquisition). As a result of such relationship, Mr. Certilman
began to learn the business of the DCAP Companies. Subsequently, he recommended
to his daughter that she consider an investment opportunity with DCAP, and she
then became a joint venture partner in four of the DCAP Companies (see "Certain
Relationships and Related Transactions" above). DCAP provided Mr. Certilman with
certain historical and projected financial information and other information
with regard to the existing business of the DCAP Companies and their plans to
expand into related areas. The projected financial information, dated as of July
1997, reflected projected combined revenues for the DCAP Companies of
approximately $8,800,000, $11,000,000 and $11,800,000 for 1997, 1998 and 1999,
respectively, and projected combined net income for the DCAP Companies of
approximately $120,000, $640,000 and $770,000 for 1997, 1998 and 1999,
respectively. The projected financial information was based upon certain
assumptions, including the assumption that the DCAP Companies would obtain an
aggregate of approximately $4,900,000 in equity and long-term debt financing
which would enable them to consolidate debt and provide a funding mechanism for
their contemplated premium financing operations. Mr. Certilman reviewed certain
other financial information as to the estimated start-up costs for the DCAP
Companies (approximately $1,070,000, based upon the equity interests of the DCAP
Shareholders in the DCAP Companies) as well as the annual franchise fees payable
to DCAP Management (approximately $470,000) and the projected combined
stockholders' deficit of the DCAP Companies (approximately $700,000). Based upon
such analysis, he determined that the interest of the DCAP Shareholders in the
DCAP Companies had a value of approximately $840,000.
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The Board reviewed the information provided and authorized a due
diligence investigation of the DCAP Companies. Following such review and
investigation, the Board concluded that, despite the losses sustained by the
DCAP Companies, based upon EXTECH's management skills and cash resources,
together with the implementation of certain cost controls and expansion into
contemplated new businesses, such as income tax return preparation and premium
financing, there was a significant likelihood of profitability. Based upon such
determination, on November 26, 1997, the Board unanimously authorized the
execution and delivery of a letter of intent with respect to the acquisition of
the DCAP Shares and a concurrent loan to DCAP in the amount of $325,000. See
"Loans."
Following the execution of the letter of intent, the Board reviewed a
certain valuation report, dated December 10, 1997, prepared in connection with
the contemplated acquisition of the Sterling Foster Shares, that estimated the
fair market value of the Sterling Foster Shares, as of October 31, 1997, at $.20
per share. See "Valuation of Sterling Foster Shares." Based upon the foregoing,
the Board concluded that 3,300,000 Common Shares of EXTECH was a fair
consideration for the DCAP Shares. On May 7, 1998, the Board unanimously
authorized the execution and delivery of the DCAP Agreement.
On December 22, 1998, the Board received a written opinion from
Capitalink, L.C. ("Capitalink") to the effect that, as of May 8, 1998 (the date
of the DCAP Agreement) and based upon and subject to certain matters stated
therein, from a financial point of view, the consideration to be offered
pursuant to the DCAP Agreement is fair to EXTECH. The full text of the written
opinion of Capitalink, which sets forth the assumption made, matters considered
and limitations on the review undertaken, is attached as Appendix B to this
Proxy Statement and should be read carefully in its entirety. The opinion of
Capitalink is directed to the Board of Directors of the Company, addresses only
the fairness of the consideration offered from a financial point of view, and
does not constitute a recommendation to any stockholder as to how such
stockholder should vote on Proposal 2. See "Fairness Opinion."
Risks and Disadvantages of DCAP Acquisition
The stockholders of the Company should be aware that the DCAP
Acquisition carries certain risks, including substantial dilution of the equity
interest of the current stockholders of the Company, the need for additional
capital for the Company to undertake planned growth and diversification, and
significant competition in the businesses of the DCAP Companies.
Currently Messrs. Certilman and Haft have voting control over 62.9% of
the outstanding Common Shares of the Company. See "Securities Ownership of
Certain Beneficial Owners and Management." Following the closing of the DCAP
Acquisition and the issuance of Common Shares to Eagle, Messrs. Certilman, Haft,
Lang and Weinzimer and Eagle will own approximately 82.6% of the Company's
outstanding Common Shares. Accordingly, such holders, if acting together, will
have the ability to control the election of the Company's Board of Directors and
other matters submitted to the Company's stockholders for approval. The
additional Common Shares are being issued based upon a valuation of $.25 per
share to Messrs. Certilman, Haft, Lang and Weinzimer (see "Valuation of
Sterling Foster Shares") and $.67 per share to Eagle notwithstanding that the
closing
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bid price for the Company's Common Shares on May 8, 1998 (the date of the DCAP
Agreement) and October 2, 1998 (the date of the Eagle Subscription Agreement)
were $.6875 and $.875 per share, respectively, as reported by the Bulletin
Board. See "Fairness Opinion."
It is contemplated that, concurrently with the closing of the DCAP Agreement,
the Company will consummate the issuance of Common Shares to Eagle and will
receive approximately $1,000,000 in equity financing as a result of such
issuance. The Company believes that such proceeds, together with anticipated
revenues from operations, will be sufficient to permit the Company to continue
to conduct operations in the manner currently conducted by it and the DCAP
Companies (including the proposed expansion plans as discussed under "EXTECH and
DCAP - DCAP - Description of Business"). However, unless additional financing in
an amount in excess of $1,000,000 is obtained, the Company will be unable to
initiate certain increased advertising efforts that DCAP believes is necessary
for growth. No definitive additional financing arrangements are in place and no
assurances can be given that any such financing will be available upon
commercially reasonable terms or otherwise; however, the Company has entered
into a letter of intent with a placement agent with respect to a contemplated
private equity financing. See "Management's Discussion and Analysis or Plan of
Operation - EXTECH."
DCAP competes with numerous well established companies that offer
insurance brokerage services (including GEICO and Allstate), income tax
preparation services (including H&R Block) and premium finance services. Many of
these companies have substantially greater financial, technical and other
resources than DCAP. Certain of these competitors have the financial resources
necessary to enable them to withstand substantial price competition.
Valuation of Sterling Foster Shares
In connection with the contemplated sale by Sterling Foster to Messrs.
Certilman, Haft, Lang and Weinzimer of an aggregate of 1,800,000 Common Shares
of EXTECH (see "The DCAP Agreement - Acquisition of Common Shares"), Margolin,
Winer & Evens LLP ("Margolin"), certified public accountants, was engaged to
determine the value of the Sterling Foster Shares. Such valuation report had
been requested by the Securities and Exchange Commission.
In connection with its report, Margolin reviewed and analyzed certain
publicly available financial information and other information concerning the
Company and certain other information furnished to Margolin by the Company.
Margolin also held discussions with Mr. Certilman, President of EXTECH,
regarding the business and prospects of the Company. In addition, Margolin
reviewed the reported prices and trading activity for EXTECH's Common Shares,
and performed such other studies and analyses and considered such other factors
as Margolin deemed appropriate. Margolin did not undertake an audit of the
Company for purposes of the valuation, but relied upon certain information
provided by the Company, including information about the performance and
financial condition of the Company.
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The following is a summary of Margolin's valuation methodology.
Adjusted Net Book Value Analysis. Margolin employed the adjusted net
book value method of valuation. Under the adjusted net book value method, a
company's assets and liabilities are adjusted to appraised value to determine
the value of the company's equity. Margolin indicated that this method is
generally used when the company's value depends heavily on its tangible assets
or the company does not have an established earnings history. For the purpose of
applying the adjusted net book value approach, Margolin utilized the Company's
balance sheet as of September 30, 1997, the latest available financial data.
Cash and cash equivalents of $1,416,996 were considered by Margolin to
be reflected at fair market value as of the balance sheet date. Accounts
receivable and notes receivable (an aggregate of $63,530), net of reserves
applied by management to estimate amounts not collectible, were considered by
Margolin to be reflected at fair market value as of the balance sheet date.
Margolin indicated that the Company's inventory of $3,561, stated at the lower
of cost or market on a first-in, first-out basis, was a reasonable approximation
of fair market value as of the valuation date. Margolin stated that, because of
the age and current condition of the Company's property, plant and equipment
(consisting primarily of furniture and fixtures of the Hotel), the book value of
these assets ($132,220) was a reasonable indication of their fair market value.
Amounts reflected on the Company's balance sheet for other assets and current
liabilities were also considered by Margolin to be recorded at their current
value as of the valuation date.
After applying the valuation method described above, Margolin estimated
the fair market value of the Company, before any discounts, as of October 31,
1997, to be approximately $1,375,423 or $.246 per share. After applying a
minority interest discount of 20% based upon the limited capacity of Sterling
Foster to influence corporate affairs and Sterling Foster's lack of control of
the Board of Directors of EXTECH, Margolin estimated the fair market value of
the Company, as of October 31, 1997, to be approximately $1,100,300 or $.20 per
share, for purposes of the Sterling Foster Shares.
Other Methods. Margolin considered, but did not employ, the following
other valuation methods:
1. Liquidation Value. Margolin indicated that this method was not
applicable to the valuation of the Company because it believed
that the highest value of the Company was on a going concern
basis and that the interest being valued was a minority
interest, which could only cause liquidation of Company assets
under limited conditions.
2. Capitalization of Earnings. Margolin indicated that the
Company had no meaningful historical trend of earnings and
that the then current operations included payments received
from a License and Technical Assistance Agreement and revenues
from operating the Hotel, which had ceased or were not
anticipated by EXTECH
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management to continue into the long term future. Accordingly,
Margolin concluded that the then current operations of the
Company were not indicative of its future operations and,
therefore, the method was not appropriate.
3. Discounted Net Cash Flow or Earnings. Margolin indicated that
this method is most commonly used in acquisition situations.
In addition, it stated that, because of the uncertainty of the
ongoing litigation with the Ports Authority, it would not be
possible to project any kind of income stream, as would be
necessary in order to utilize this method.
4. Comparable Company Value Multiples. Margolin indicated that it
was unable to find any companies that were sufficiently
comparable in terms of diversification, size and historical
trends to enable it to utilize this method.
Additional factors considered by Margolin when applying its valuation
methodology were the following:
1. The Company's Common Shares have been thinly traded
historically. Because of the lack of trading activity, any
significant stock or market transactions could materially
affect the stock price. Margolin therefore concluded that it
did not believe that the then current stock prices were
indicative of the fair market value of EXTECH's Common Shares.
2. On June 3, 1996, the Company issued 3,200,000 Common Shares at
a price of $.25 per share in a private placement.
Margolin is a full service certified public accounting and business
advisory firm. Margolin provides a full range of traditional consulting and
value-advisory services, including accounting and auditing services, tax
services, systems consulting services, corporate reengineering services, merger
and acquisition services, estate succession planning services, strategic
business planning services, business revitalization services, litigation,
consulting and bankruptcy services, health care practice services and family
business services. The Company selected Margolin based on Margolin's reputation
and expertise. Margolin's fee was not contingent upon or related to the range of
value estimated or upon the outcome of any transaction, and there were no
factors which inhibited it from rendering a fair and unbiased valuation.
Fairness Opinion
In connection with the DCAP Acquisition, the Board of Directors of
EXTECH authorized the engagement of Capitalink, L.C. ("Capitalink") to render an
opinion as to the fairness, from a financial point of view, to EXTECH of the
consideration to be offered pursuant to the DCAP Agreement. Jay M. Haft, a
director of the Company, had previously had business dealings with the
principals of Capitalink and recommended to the Board the selection of such firm
based upon the experience of the firm and its principals in analyzing and
evaluating business combinations. On December 22, 1998, Capitalink delivered
its written opinion to the Board of Directors of EXTECH that, as of May 8, 1998
and based upon and subject to the assumptions made,
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matters considered, and limitations on its review as set forth in the opinion,
from a financial point of view, the consideration to be offered pursuant to the
DCAP Agreement is fair to EXTECH.
The full text of the written opinion of Capitalink is attached as
Appendix B and is incorporated by reference (the "Capitalink Opinion"). EXTECH
stockholders are urged to read the Capitalink Opinion carefully and in its
entirety for a description of the assumptions made, matters considered,
procedures followed and limitations on the review undertaken by Capitalink in
rendering its opinion. The summary of the Capitalink Opinion set forth in this
Proxy Statement is qualified in its entirety by reference to the full text of
such opinion. All references in this "Fairness Opinion" section to "DCAP" should
be read as referring to the "DCAP Companies."
No limitations were imposed by EXTECH on the scope of Capitalink's
investigation or the procedures to be followed by Capitalink in rendering its
opinion. Capitalink was not requested to and did not make any recommendation to
the Board of Directors of EXTECH as to the form or amount of consideration to be
paid by EXTECH in the DCAP Acquisition, which was determined through arms length
negotiations between the parties. The Capitalink Opinion is for the use and
benefit of the Board of Directors of EXTECH in connection with its consideration
of the DCAP Acquisition and is not intended to be and does not constitute a
recommendation to any stockholder of EXTECH as to how such stockholder should
vote with respect to the DCAP Acquisition. Capitalink was not requested to opine
as to, and its opinion does not address, EXTECH's underlying business decision
to proceed with or effect the DCAP Acquisition.
In arriving at its opinion, Capitalink, among other things: (i)
reviewed the DCAP Agreement and the specific terms of the DCAP Acquisition; (ii)
reviewed publicly available financial information and other data with respect to
EXTECH, including the 1997 Form 10-KSB, and certain other relevant financial and
operating data relating to EXTECH and DCAP made available from published sources
and from the internal records of EXTECH and DCAP; (iii) reviewed and discussed
with representatives of the managements of EXTECH and DCAP certain financial and
operating information furnished to Capitalink, including financial projections
and related assumptions with respect to the business, operations and prospects
of DCAP; (iv) considered various trading multiples, to the extent publicly
available, of certain other companies that were deemed comparable to DCAP; (v)
considered the historical financial results and present financial condition of
each of EXTECH and DCAP; (vi) reviewed certain publicly available information
concerning the trading of, and the trading market for, the Common Shares of
EXTECH; (vii) inquired about and discussed the DCAP Acquisition and DCAP
Agreement and other matters related thereto with EXTECH's management; and (viii)
performed such other analyses and examinations as were deemed appropriate.
In arriving at its opinion, Capitalink relied upon and assumed the
accuracy and completeness of all of the financial and other information that was
used without assuming any responsibility for any independent verification of any
such information and further relied upon the assurances of managements of EXTECH
and DCAP that they were not aware of any facts or circumstances that
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would make any such information inaccurate or misleading. With respect to the
financial projections of DCAP, Capitalink assumed that such projections were
reasonably prepared on a basis reflecting the best available estimates and
judgements of management as to DCAP's future operating and financial
performance, and that such projections provide a reasonable basis upon which an
opinion could be formed. In addition, the projections of DCAP were based upon
numerous variables and assumptions that are inherently uncertain, including,
without limitation, factors relating to general economic and competitive
conditions. Accordingly, actual results could vary significantly from those set
forth in such projections. In arriving at its opinion, Capitalink did not make a
physical inspection of the properties and facilities of EXTECH and DCAP, and did
not obtain any evaluations or appraisals of the assets and liabilities
(contingent or otherwise) of EXTECH and DCAP. Capitalink assumed that the DCAP
Acquisition will be consummated in an manner that complies in all respects with
the applicable provisions of the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as amended, and all
other applicable federal and state statues, rules and regulations. In addition,
upon the advice of the management of EXTECH and its legal and accounting
advisors, Capitalink assumed that the exchange of shares in the DCAP Acquisition
will not be a taxable event based on Section 351 of the Internal Revenue Code of
1986, as amended (the "Code"). Capitalink's opinion was necessarily based upon
market, economic and other conditions as they exist on, and could be evaluated
as of, May 8, 1998. Accordingly, although subsequent developments may affect its
opinion, Capitalink did not assume any obligation to update, review or reaffirm
its opinion.
Each of the analyses conducted by Capitalink was carried out in order
to provide a different perspective on the DCAP Acquisition, and to enhance the
total mix of information available. Capitalink did not form a conclusion as to
whether any individual analysis, considered in isolation, supported or failed to
support an opinion as to the fairness, from a financial point of view, of the
DCAP Acquisition to EXTECH. Capitalink did not place any particular reliance or
weight on any individual analysis, but instead concluded that its analyses,
taken as a whole, supported its determination. Accordingly, Capitalink believes
that its analyses must be considered as a whole and that selecting portions of
its analyses or the factors it considered, without considering all analyses and
factors collectively, could create an incomplete view of the process underlying
the analyses performed by Capitalink in connection with the preparation of its
opinion.
Capitalink analyzed the fairness of the DCAP Acquisition using the
following methodologies:
Discounted Cash Flow Analysis. Capitalink performed discounted cash
flow ("DCF") analyses, aggregating (x) the present value of DCAP's projected
unlevered free cash flows over the five year forecast period with (y) the
present value of a range of terminal values described below. Free cash flow
represents the amount of cash generated and available for principal, interest
and dividend payments after providing for ongoing business operations; these
free cash flow figures were based upon operating and financial forecasts
provided to Capitalink by the managements of DCAP and EXTECH. The range of
terminal values represents the residual value of DCAP at the end of the
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forecast period; this range of terminal values was calculated by applying a
range of implied multiples to DCAP's: (i) revenues; (ii) earnings before
interest, taxes, depreciation and amortization ("EBITDA"); (iii) earnings before
interest and taxes ("EBIT"); and (iv) perpetual growth rates, in the final year
of the forecast period.
As part of the DCF analysis, Capitalink utilized discount rates of
17.5% to 32.5%, which were chosen based upon several assumptions including
interest rates, the inherent business risk of DCAP and DCAP's estimated cost of
capital. The resulting range of implied enterprise values for DCAP was then
adjusted to account for net debt (debt minus cash), by subtracting approximately
$328,000, yielding a range of implied equity values for DCAP.
Capitalink undertook two DCF analyses based on (i) forecasts provided
by the managements of DCAP and EXTECH (the "Management Case"), and (ii) an
adjustment to the Management Case (the "Revised Case"). The Revised Case adjusts
several of the key Management Case assumptions downward.
Under the Management Case, based upon a range of terminal multiples of
revenue for fiscal year 2003 of .25x to 1.00x, the implied enterprise value of
DCAP ranged from approximately $2.3 million to approximately $9.7 million; after
subtracting net debt, the implied equity value of DCAP ranged from approximately
$2.0 million to approximately $9.4 million. Based upon a range of terminal
multiples of EBITDA for fiscal year 2003 of 2.00x to 8.00x, the implied
enterprise value of DCAP ranged from approximately $3.2 million to approximately
$16.5 million; after subtracting net debt, the implied equity value of DCAP
ranged from approximately $2.9 million to approximately $16.2 million. Based
upon a range of terminal multiples of EBIT for fiscal year 2003 of 4.00x to
10.00x, the implied enterprise value of DCAP ranged from approximately $4.8
million to approximately $18.2 million; after subtracting net debt, the implied
equity value of DCAP ranged from approximately $4.5 million to approximately
$17.9 million. Based upon a range of terminal multiples of perpetual growth
rates for fiscal year 2003 of 8.00% to 14.00%, the implied enterprise value of
DCAP ranged from approximately $2.7 million to approximately $20.5 million;
after subtracting net debt, the implied equity value of DCAP ranged from
approximately $2.4 million to approximately $20.2 million.
Based on the fact that there are 29 stores which are either owned by
the DCAP Shareholders or in which the DCAP Shareholders have a joint venture
arrangement, in addition to the franchised stores through which DCAP is paid a
franchise fee, the estimated DCAP Shareholder ownership interest in the free
cash flow is 60%. Therefore, the implied value to ownership interest based upon
multiples of revenue ranged from approximately $1.2 million to approximately
$5.6 million, with a mean of approximately $2.9 million. The implied value to
ownership interest based upon multiples of EBITDA ranged from approximately $1.7
million to approximately $9.7 million, with a mean of approximately $4.9
million. The implied value to ownership interest based upon multiples of EBIT
ranged from approximately $2.7 million to approximately $10.7 million, with a
mean of approximately $5.9 million. The implied value to ownership interest
based upon multiples of
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perpetual growth rates ranged from approximately $1.4 million to approximately
$12.1 million, with a mean of approximately $3.8 million.
In the Revised Case scenario, Capitalink made several adjustments to
the assumptions underlying the Management Case forecasts. In particular, (i) in
connection with commissions and service fees, the renewal rate from the previous
year were reduced by 10%, the new policies per week were reduced by 10%, the
average new policy commission was reduced by 5%, and the average new policy
service fee and motor clubs were reduced by 10%; and (ii) in connection with
premium finance income, new applications per month were reduced by 50%, and the
assumed profit per application was reduced by 10%.
Under the Revised Case, based upon the range of terminal multiples of
revenue for fiscal year 2003 of .25x to 1.00x, the implied enterprise value of
DCAP ranged from approximately $449,000 to approximately $6.0 million; after
subtracting net debt, the implied equity value of DCAP ranged from approximately
$121,000 to approximately $5.7 million. Based upon a range of terminal multiples
of EBITDA for fiscal year 2003 of 2.00x to 8.00x, the implied enterprise value
of DCAP ranged from approximately $909,000 to approximately $9.3 million; after
subtracting net debt, the implied equity value of DCAP ranged from approximately
$581,000 to approximately $9.0 million. Based upon a range of terminal multiples
of EBIT for fiscal year 2003 of 4.00x to 10.00x, the implied enterprise value of
DCAP ranged from approximately $1.9 million to approximately $10.2 million;
after subtracting net debt, the implied equity value of DCAP ranged from
approximately $1.5 million to approximately $9.8 million. Based upon a range of
terminal multiples of perpetual growth rates for fiscal year 2003 of 8.00% to
14.00%, the implied enterprise value of DCAP ranged from approximately $881,000
to approximately $16.0 million; after subtracting net debt, the implied equity
value of DCAP ranged from approximately $553,000 to approximately $15.7 million.
Under the Revised Case, the implied value to ownership interest based
upon multiples of revenue ranged from approximately $73,000 to approximately
$3.4 million, with a mean of approximately $1.4 million. The implied value to
ownership interest based upon multiples of EBITDA ranged from approximately
$349,000 to approximately $5.4 million, with a mean of approximately $2.3
million. The implied value to ownership interest based upon multiples of EBIT
ranged from approximately $922,000 to approximately $5.9 million, with a mean of
approximately $2.9 million. The implied value to ownership interest based upon
multiples of perpetual growth rates ranged from approximately $332,000 to
approximately $9.4 million, with a mean of approximately $2.3 million.
Selected Comparable Company Analysis. The comparable publicly traded
company analysis involves the review of companies deemed comparable to DCAP.
Capitalink reviewed and compared certain financial information relating to DCAP
to corresponding financial information, ratios and public market multiples for
five publicly traded companies that it deemed comparable to DCAP. No company
used in Capitalink's analysis was deemed to be identical to DCAP; accordingly,
Capitalink considered the market multiples for the composite Publicly-Traded
Comparables (as defined hereafter) to be more relevant than the market multiples
of any single company. The
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companies used for purposes of this analysis were Arthur J. Gallagher & Co.,
E.W. Blanch Holdings, Inc., Hilb, Rogal & Hamilton Co., Poe & Brown Inc., and
The Seibels Bruce Group, Inc. (the "Publicly-Traded Comparables").
Based on publicly available information, Capitalink compared (i) net
tangible book value, (ii) revenues for the twelve months ended December 31,
1997, (iii) EBITDA for the twelve months ended December 31, 1997, (iv) EBIT for
the twelve months ended December 31, 1997, and (v) total assets of the
Publicly-Traded Comparables with those of DCAP. Capitalink also calculated a
range of enterprise value multiples for such companies by dividing the
respective adjusted market values (defined as market value plus the aggregate
book value of all debt, preferred stock and minority interest, minus the
aggregate book value of cash and cash equivalents) by items (i) through (v)
above for each of the Publicly-Traded Comparables.
This analysis indicated that the approximate enterprise value multiple
of net tangible book value ranged from .41x to 11.05x, with a mean of 6.7x; that
the approximate enterprise value multiple of revenues ranged from .28x to 2.7x,
with a mean of 1.61x; the approximate enterprise value multiple of EBITDA ranged
from 3.0x to 9.5x, with a mean of 7.0x; the approximate enterprise value
multiple of EBIT ranged from 3.7x to 10.1x, with a mean of 8.0x; and the
approximate enterprise value multiple of total assets ranged from .07x to 1.57x,
with a mean of .9x.
In order to account for the lack of liquidity associated with DCAP and
its small size versus the Publicly-Traded Comparables, Capitalink discounted the
respective mean multiples by 50%. The discounted mean multiples were applied to
the corresponding financial information for DCAP, based on DCAP's financial
statements for the fiscal year ended December 31, 1997, to determine an implied
enterprise value for DCAP. The resulting implied enterprise value for DCAP was
then adjusted to account for net debt (debt minus cash) by subtracting $328,000
yielding an implied equity value for DCAP.
Based upon the discounted mean multiple of revenue, the implied
enterprise value of DCAP was approximately $6.7 million; after subtracting net
debt, the implied equity value of DCAP was approximately $6.4 million. Based
upon the discounted mean multiple of total assets, the implied enterprise value
of DCAP was approximately $1.1 million; after subtracting net debt, the implied
equity value of DCAP was approximately $730,000. The implied enterprise value
and implied equity value of DCAP could not be derived from the discounted mean
multiples of net tangible book value, EBITDA, and EBIT as the respective items
for DCAP were negative.
None of the Publicly-Traded Comparables utilized as a comparison is
identical to DCAP. Accordingly, an analysis of publicly-traded comparable
companies is not mathematical; rather it involves complex consideration and
judgments concerning differences in financial and operating characteristics of
the comparable companies and other factors that could affect the public trading
of the comparable companies or company to which they are being compared.
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Replacement Cost Analysis. Because EXTECH is acquiring the ongoing
business of DCAP in the DCAP Acquisition, rather than developing such a business
on its own, Capitalink determined the cost necessary to duplicate, to the extent
possible, the existing business of DCAP. The assumptions set forth in the
analysis are based on discussions with EXTECH management.
It was determined that the initial outlay, including property and
equipment, required to develop a new "DCAP store" would be approximately
$60,000. It was further determined that there are 29 stores which are either
owned by the DCAP Shareholders or in which the DCAP Shareholders have a joint
venture arrangement. In the aggregate, the estimated DCAP Shareholder ownership
percentage of the 29 stores is approximately 60%. Therefore, the outlay
necessary to duplicate the DCAP Shareholders' 60% ownership interest in 29
stores which each require $60,000 to start-up would be approximately $1.0
million. In addition, the estimated cost to duplicate DCAP's headquarters
include, but would not be limited to: (i) property and equipment - $100,000, and
(ii) software - $250,000, which results in estimated total costs necessary to
duplicate the existing business of approximately $1.4 million.
This analysis does not include certain tangible and intangible assets
comprised of (i) franchise fee income and value, (ii) name recognition, (iii)
industry contacts and (iv) goodwill. In addition, this analysis does not take
into account the required working capital for opening stores, funding startup
losses and for continuing operations.
Pro Forma Contribution Analysis. Capitalink analyzed the contribution
of each of EXTECH and DCAP to the pro forma 1997 operating results and projected
pro forma 1999 operating results of a combined entity. The projected amounts
were derived from the Management Case projections. Specifically, Capitalink
calculated that DCAP would have contributed 90.4% of pro forma 1997 revenues,
67.7% of pro forma 1997 negative EBITDA, and 70.6% of pro forma 1997 net loss.
For projected 1999, Capitalink calculated that DCAP would contribute 90.7% of
pro forma revenues, 93.5% of pro forma EBITDA, and 99.6% of pro forma net
income.
Pro Forma Valuation Analysis. Capitalink performed an analysis to
determine the pro forma valuations of each of EXTECH and DCAP based on a range
of multiples on the respective projected EBITDA for each company. Under the
analysis, a range of acquisition/exit multiples of EBITDA ranging from 2.0x to
8.0x were applied to the projected 2000 EBITDA to yield a series of gross exit
values. The EBITDA amounts were derived from the Management Case projections. A
series of pro forma net equity values were formulated by reducing the gross exit
values by the net debt (assumed cash less assumed debt) in a theoretical
acquisition. An average pro forma net equity value was derived for each of
EXTECH and DCAP, and utilizing a discount rate of 20%, Capitalink derived the
present value of average pro forma net equity value for each company.
The pro forma valuation was derived by determining the interest in the
respective assumed present value of average pro forma net equity held by EXTECH
and DCAP stockholders. EXTECH's resulting pro forma valuation is approximately
$452,000, or approximately 15.9% of a
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pro forma combined entity. DCAP's pro forma valuation is approximately $2.4
million, or approximately 84.1% of a pro forma combined entity.
Asset Accumulation Analysis. The Asset Accumulation Method is a balance
sheet oriented valuation method whereby a company's balance sheet is restated to
fair market value. This involves the revaluation of the assets and liabilities
recorded on the balance sheet, and the identification and valuation of otherwise
unrecorded tangible and intangible assets and liabilities. This method is often
utilized when a company does not have an established earnings history.
For the purpose of using the Asset Accumulation Method, Capitalink
utilized the EXTECH balance sheet as of March 31, 1998, the latest available
financial data prior to the date of the opinion. The balance sheet items have
been analyzed to determine whether any adjustments are necessary to the carrying
values in order for the fair market values to be accurately reflected. No such
adjustments were deemed to be necessary.
After applying the Asset Accumulation Method, Capitalink estimated the
fair market value of a share of Common Stock of EXTECH to be $.236 (assuming
5,591,000 shares outstanding), and the value of the entity to be approximately
$1.4 million.
Historical Financial Data Analysis. Capitalink reviewed and analyzed
the financial information for EXTECH including the Annual Reports on Form 10-KSB
and Quarterly Reports on Form 10-QSB. In addition, Capitalink reviewed and
analyzed the financial information for DCAP including the audited financial
statements as of and for the years ended December 31, 1997 and 1996.
Historical Stock Price Analysis. Capitalink reviewed the closing market
price and trading volume of the EXTECH Common Shares for the monthly periods
over the one-year periods (i) prior to the announcement of the DCAP Acquisition,
and (ii) prior to the Agreement. Capitalink compared the monthly closing market
price performance of the EXTECH Common Shares for such one-year periods to the
Standard and Poor's 500 Composite Index ("S&P 500"). This analysis shows that,
during such periods, the EXTECH Common Shares outperformed the S&P 500; however,
due to (i) the limited trading volume of the EXTECH Common Shares (average
monthly volume of 19,450 shares for the year prior to the announcement of the
DCAP Acquisition, and 32,250 for the year prior to the Agreement), and (ii) the
fact that any significant transaction could materially affect the share price,
the share price can not be relied upon to be an accurate representation of its
fair market value.
In connection with its services with regard to the DCAP Acquisition,
Capitalink received $35,000. In addition, EXTECH has agreed to indemnify
Capitalink for any and all loss, claim, damage, liability or expense that may
arise out of Capitalink's rendering its opinion, except to the extent based
solely upon Capitalink's gross negligence or bad faith in the performance of its
duties.
Capitalink is an investment banking firm which, as part of its
investment banking business, regularly is engaged in the evaluation of
businesses and their securities in connection with mergers,
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acquisitions, and private placements. There were no material relationships
between (i) Capitalink and/or its affiliates and (ii) EXTECH and/or its
affiliates during the past two years, and none is mutually understood to be
contemplated.
The DCAP Agreement
The following is a summary of the material terms of the DCAP Agreement.
Reference is made to the DCAP Agreement (inclusive of the exhibits and Schedules
A and B thereto, but exclusive of other schedules thereto) attached hereto as
Appendix A.
Acquisition of Common Shares
Pursuant to the DCAP Agreement, EXTECH will acquire the DCAP Shares if
the requisite stockholder approval is obtained and if certain other conditions
specified in the DCAP Agreement are satisfied or waived. The parties may waive
any conditions to their respective obligation to consummate the DCAP Agreement,
except those required by law. Following stockholder approval of the DCAP
Acquisition, EXTECH will not, without further stockholder approval, waive any
condition that by law would require such further stockholder approval. See
"Conditions to Closing."
At the closing of the DCAP Acquisition, the following Common Shares of
EXTECH are to be issued:
(i) 3,300,000 Common Shares to Messrs. Lang and Weinzimer
(1,650,000 Common Shares to each) (the "Acquisition
Shares") in consideration for the transfer of the
DCAP Shares;
(ii) 950,000 Common Shares to Messrs. Lang and Weinzimer
(475,000 Common Shares to each) (the "950,000
Additional Shares") at a purchase price of $.25 per
share (an aggregate of $237,500), payable as follows:
(a) an amount in cash equal to the par value of
the 950,000 Additional Shares (an aggregate
of $9,500); and
(b) the balance by the delivery by each of
Messrs. Lang and Weinzimer of a promissory
note in the principal amount of $114,000 (an
aggregate of $228,000) (collectively, the
"Additional Shares Notes"). The Additional
Shares Notes (a form of which is attached as
Exhibit 2.4.1(a) to the DCAP Agreement) are
to provide for, among other things, the
following:
(I) interest at the rate of 6% per annum;
and
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(II) payment of principal and interest in
six equal annual installments
commencing April 15, 2001 and
continuing through April 15, 2006,
subject to acceleration to the
extent that the respective DCAP
Shareholder receives any proceeds
from the sale or other disposition
of any Common Shares (see "Sale of
EXTECH Shares"); and
(iii) 452,000 Common Shares to Messrs. Certilman and Haft
or their designees (226,000 Common Shares to each)
(the "EXTECH Management Additional Shares") at a
purchase price of $.25 per share (an aggregate of
$113,000), payable in cash.
In addition, it is contemplated that, at the closing of the DCAP
Agreement, Messrs. Certilman, Haft, Lang and Weinzimer (or their designees) will
each purchase 450,000 Common Shares of EXTECH (1,800,000 Common Shares in the
aggregate) (the "Sterling Foster Shares"), beneficially owned by Sterling Foster
and held by Mr. Certilman as voting trustee pursuant to the Voting Trust
Agreement with Sterling Foster, at a purchase price of $.25 per share. Mr.
Certilman will not receive any portion of such purchase price. The purchase of
the Sterling Foster Shares is conditioned upon the termination of the Voting
Trust Agreement.
Sterling Foster has entered into an agreement with each of Messrs.
Certilman, Haft, Lang and Weinzimer providing for the purchase and sale of the
Sterling Foster Shares upon the above terms concurrently with the closing of the
DCAP Agreement. Each of the parties has the right to terminate the agreement if
the closing shall not have occurred by February 28, 1999.
The DCAP Agreement provides that, at the closing, EXTECH will lend
$112,500 to each of the DCAP Shareholders (an aggregate of $225,000) (the
"Closing Loans"). The proceeds of the Closing Loans will be used by the DCAP
Shareholders solely for the purpose of purchasing the Sterling Foster Shares.
Each of the Closing Loans is to be evidenced by a promissory note (a form of
which is attached as Exhibit 2.5.2(a) to the DCAP Agreement) (the "Closing Loan
Notes") that will provide for, among other things, the following:
(i) interest at the rate of 6% per annum;
(ii) payment of principal and interest in six equal annual
installments commencing April 15, 2001 and continuing
through April 15, 2006, subject to acceleration to
the extent that the respective DCAP Shareholder
receives any proceeds from the sale or other
disposition of any Common Shares (see "Sale of EXTECH
Shares");
(iii) non-recourse against the DCAP Shareholder, i.e., the
DCAP Shareholders will not be personally liable for
the payment of the Closing Loan Notes; instead, in
the event of a default, the Company's sole remedy
will be pursuant to a pledge of the Sterling Foster
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Shares by the DCAP Shareholders, as discussed below;
and
(iv) the right of each DCAP Shareholder to satisfy the
amounts due under his respective Closing Loan Note by
delivering Common Shares of EXTECH valued at the
greater of (A) $.25 per share or (B) the average
market price of EXTECH's Common Shares for the 20
trading days immediately preceding the date of
delivery of the shares.
The payment of all amounts due under the Additional Shares Notes is to
be secured by a pledge by each of the DCAP Shareholders to EXTECH of 570,000
Common Shares of EXTECH, pursuant to pledge agreements that are to be entered
into at the closing of the DCAP Acquisition. A form of such pledge agreement is
attached to the DCAP Agreement as Exhibit 2.4.1(b). The payment of all amounts
due under the Closing Loan Notes is to be secured by a pledge by each of the
DCAP Shareholders to EXTECH of the Sterling Foster Shares acquired by him,
pursuant to pledge agreements that are to be entered into at the closing of the
DCAP Acquisition. A form of such pledge agreement is attached to the DCAP
Agreement as Exhibit 2.5.2(b).
Loans
Simultaneously with the execution of the letter of intent with respect
to the DCAP Acquisition in November 1997, the Company loaned $325,000 to DCAP.
In March 1998, the Company loaned an additional $114,000 to DCAP.
Simultaneously with the execution of the DCAP Agreement, EXTECH loaned
to DCAP an additional $311,000. Between November 1998 and January 1999, EXTECH
loaned to DCAP additionally an aggregate of $205,000. In February 1999, DCAP
repaid $75,000 of the amounts loaned.
Each of the loans is evidenced by a promissory note (collectively, the
"DCAP Notes") that, as amended, provides for, among other things, the following:
(i) payment of the principal amount thereof on February 28,
1999; and
(ii) interest at the rate of 10% per annum, payable with the
principal payment.
The payment of all amounts due under the DCAP Notes is secured by the
pledge by the DCAP Shareholders of the DCAP Shares, pursuant to the terms of
certain Pledge Agreements dated as of November 26, 1997, as amended by the terms
of the DCAP Agreement, and November 20, 1998.
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Employment Agreements
It is contemplated that, at the closing of the DCAP Acquisition, the
Company will enter into employment agreements with Messrs. Lang, Weinzimer,
Certilman and Haft (collectively, the "Employment Agreements") pursuant to which
Mr. Lang will be employed as the Company's President, Mr. Weinzimer as its
Executive Vice President, Mr. Certilman as its Chairman of the Board and Mr.
Haft as its Vice Chairman. The following summary of the terms of the Employment
Agreements does not purport to be complete and is qualified in its entirety by
reference to the form of Employment Agreement attached to the DCAP Agreement as
Exhibit 7.8.
General
The Employment Agreements to be entered into by Messrs. Lang,
Weinzimer, Certilman and Haft are to be identical in all respect, except as
discussed below under "Special Provisions for DCAP Shareholders."
Term
The term of each Employment Agreement is to be five years (the "Initial
Term"), with an automatic three year renewal term (the "Extended Term") unless,
at least 90 days prior to the expiration of the Initial Term, the Company, by
vote of 75% of all of the members of its Board of Directors (including, for
purposes of determining the number of members of the Board, the particular
employee, if a member) (as provided for in the Company's By-Laws) notifies the
employee of its desire not to extend the term of the Employment Agreement. In
the event the Company makes such election, the employee generally shall be
entitled to receive, as termination payments, his then annual base salary for a
period of two additional years (the "Severance Amount"). See "Agreement as to
Voting" with regard to a contemplated By-Law provision that would require a
unanimous vote of the members of the Board under certain circumstances.
Devotion of Time
During the term of the Employment Agreement, each DCAP Shareholder is
to expend all of his working time for the Company. Messrs. Certilman and Haft
are to perform such part-time services as are reasonably necessary for them to
fulfill their responsibilities as Chairman and Vice Chairman, respectively.
Salary
During the employment period, each DCAP Shareholder will be entitled to
receive a salary of $250,000 per annum, while Messrs. Certilman and Haft are to
receive annual salaries of $125,000 and $22,500, respectively. Each employee
will also be entitled to such additional compensation as may be determined by
the Board of Directors of the Company in its sole discretion.
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Disability
If, during the employment period, an employee becomes physically or
mentally incapable of performing his duties under his Employment Agreement,
then, for the first six months of such disability, he shall be entitled to
receive his full salary. The Company will have the right to terminate the
employee's employment if he is disabled for a continuous period of nine months
or at least 250 business days within an 18 month period. If the Company has in
effect a disability policy with respect to the particular employee, or, if not
with respect to the particular employee, then with respect to any executive
officer of the Company, the employee shall be considered disabled only if he is
or would be so considered under such policy. The obligations of the Company to
make the foregoing payments during periods of disability may be satisfied in
whole or in part by payments to the employee of such disability insurance policy
proceeds. The Company does not currently have in effect a disability policy for
either Mr. Certilman or Mr. Haft. It is contemplated that, at the closing of the
DCAP Acquisition, the Company will obtain disability insurance policies on
behalf of each of the DCAP Shareholders. See "Special Provisions for DCAP
Shareholders Disability Insurance Policy."
Termination
Pursuant to the terms of the Employment Agreements, an employee's
employment terminates automatically on his death and, at the Company's option,
if the employee becomes disabled (as discussed above under "Disability"). In
addition, an employee's employment may be terminated at any time for "cause."
"Cause" is defined in the Employment Agreements as the employee's commission of
any act in the performance of his duties constituting common law fraud, a felony
or other gross malfeasance of duty, the employee's commission of any act
involving moral turpitude, any material misrepresentation by the employee, a
breach of any material covenant on the employee's part set forth in the
Employment Agreement, or the employee's engagement in misconduct which is
materially injurious to the Company. Pursuant to the terms of the Employment
Agreements and the Company's By-Laws, the Company may terminate an employee's
employment based upon a claim of "cause" only if a majority of all of the
members of its Board of Directors (including, for purposes of determining the
number of members of the Board, the particular employee, if a member) shall have
approved the action. As provided for in the Employment Agreements and the
Company's By-Laws, if the Company desires to terminate an employee's employment
not based upon a claim of "cause," then 75% of all of the members of the Board
of Directors (including, for purposes of determining the number of members, the
particular employee, if a member) must approve the action. See "Agreement as to
Voting" with regard to a contemplated By-Law provision would that require a
unanimous vote of the members of the Board under certain circumstances.
In the event of termination of an employee's employment without
"cause," the employee will be entitled to receive, as liquidated damages, an
amount equal to all compensation that he would have been entitled to receive for
the remainder of the term, including the Extended Term, as if his
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employment had not terminated; however, if the termination notice is given (i)
prior to 90 days before the expiration of the Initial Term, or (ii) subsequent
to such time, but after the date the Company has given timely notice of its
desire not to extend the Initial Term, the terminated employee shall be entitled
to receive the Severance Amount. The terminated employee is not required to seek
other employment after termination of his employment without "cause;" however,
any amounts paid or payable to the terminated employee from other employment or
other services will reduce, dollar for dollar, the amounts otherwise payable to
him pursuant to his Employment Agreement.
Restrictive Covenants
For a period of two years after the expiration or termination of the
Employment Agreement, without the prior written consent of the Company, the
terminated employee is restricted, within a radius of five miles of any office
or franchise of the Company, from, among other things, directly or indirectly,
engaging or participating in a business which is similar to or competitive with
the business activities of the Company. The restrictive covenants, however, do
not apply if the Employment Agreement is terminated based on a disability of the
employee and will cease to apply if:
(i) the Company defaults in any obligation to pay any
post-termination amounts that are payable pursuant to
the provisions of the Employment Agreement and such
default continues for a period of 20 days following
receipt by the Company of written notice thereof; or
(ii) if all of the following conditions exist: (a) the
term of the Employment Agreement is extended for the
Extended Term; (b) prior to the expiration of the
Extended Term, the employee is not offered a further
two-year extension, with the same base annual salary
and substantially the same terms as provided for in
the Employment Agreement; (c) the employee's
employment is not terminated for "cause" during the
Extended Term and he does not voluntarily terminate
his employment; and (d) the employee's employment
ends on the last day of the Extended Term.
Stock Options
It is contemplated that, at the closing of the DCAP Acquisition, each
of Messrs. Lang and Weinzimer will be granted options to purchase up to 200,000
Common Shares of the Company and each of Messrs. Certilman and Haft will be
granted options to purchase up to 225,000 Common Shares of the Company. Such
options are to be granted upon the following terms:
(i) the exercise price of such options will be 110% of
the fair market value of the Common Shares on the
date of the grant;
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(ii) the options will expire five years from the date
of grant; and
(iii) the options will vest to the extent of one-half
thereof on the first anniversary of the date of grant
and one-half on the second anniversary.
Special Provisions for DCAP Shareholders
Loans
For each of the twelve-month periods of the Initial Term, the Company
will be obligated, upon the written request of each DCAP Shareholder, to lend to
the DCAP Shareholder up to $20,000. Each such loan is to be evidenced by a
promissory note of the DCAP Shareholder (a form of which is attached as Exhibit
4.3(a) to the form of Employment Agreement) in the principal amount of the loan
and is to provide for, among other things, the following:
(i) interest at the prime rate (as published in the Wall
Street Journal); and
(ii) payment of principal and interest in four equal
annual installments, commencing one year from the
date of each loan (but in no event after the seventh
anniversary of the closing of the DCAP Acquisition),
subject to acceleration to the extent that the DCAP
Shareholder receives any proceeds from the sale or
other disposition of any Common Shares (see "Sale of
EXTECH Shares").
The repayment of all amounts due under each such note is to be secured
by the pledge by the DCAP Shareholder, pursuant to a pledge agreement, of five
Common Shares of the Company for each one dollar loaned. A form of such pledge
agreement is attached to the form Employment Agreement as Exhibit 4.3(b).
Bonus
In the event that the Company's Pre-Tax Net Income (as such term is
defined in the Employment Agreements) for any fiscal year of a DCAP
Shareholder's Employment Agreement (but commencing with the fiscal year ending
December 31, 2000 and continuing only through the fiscal year ending December
31, 2005) is at least $100,000, the DCAP Shareholder will be entitled to receive
a bonus in the amount of $37,500 for such year. No bonus will be payable for a
particular fiscal year if no amounts are then payable by the DCAP Shareholder to
the Company pursuant to his Additional Shares Note. Furthermore, the amount of
any bonus payable may never exceed the amount payable by the DCAP Shareholder
pursuant to his Additional Shares Note, and the Company will be entitled to
offset against any such bonus any amount so payable.
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Automobile Allowance
Each DCAP Shareholder will be entitled to the use of a Company-leased
automobile during the employment period for business purposes. The Company's
lease obligation is not to exceed $1,200 per month per automobile. In addition,
the Company is to be responsible for all insurance premiums with respect to the
automobile (not to exceed $3,000 per year per automobile) as well as all
expenses for gasoline, maintenance and repairs.
Disability Insurance Policy
Pursuant to the Employment Agreements, the Company will be obligated to
obtain a disability insurance policy on behalf of each DCAP Shareholder and
maintain such policy in effect during the employment period. The maximum amount
of premiums for each policy is to be $6,500 per annum.
Buy-Out Upon Death
It is contemplated that, at the closing of the DCAP Acquisition, the
Company will enter into agreements with Messrs. Lang and Weinzimer
(collectively, the "Death Buy-Out Agreements") that will provide that, in the
event of the death of either or both of the DCAP Shareholders, the estate of the
deceased person shall sell to the Company, and the Company shall purchase from
the estate, such number of Common Shares as shall equal the lesser of (i) the
quotient of the proceeds of a particular insurance policy on the life of the
particular person divided by the Fair Market Value per Share (as defined in the
Death Buy-Out Agreement) or (ii) the number of shares owned, beneficially or of
record, by the deceased shareholder. The purchase price per share will be such
Fair Market Value per Share. The Company's obligation to purchase the shares of
the deceased person will be conditioned upon its receipt of proceeds from the
insurance policies.
Messrs. Lang and Weinzimer are the owners of insurance policies on
their respective lives in the approximate amounts of $400,000 and $350,000,
respectively, and at the closing are to assign ownership of such policies to the
Company. If the insurance proceeds exceed the purchase price of the shares, the
balance of the proceeds will belong to the Company. If the deceased person is
indebted to the Company at the time of his death, the amount of such debt will
first be deducted from the amount payable to his estate. The foregoing summary
of the Death Buy-Out Agreements does not purport to be complete and is qualified
in its entirety by reference to the form of Death Buy- Out Agreement attached to
the DCAP Agreement as Exhibit 7.14.
Restrictive Covenant Agreements
It is contemplated that, at the closing of the DCAP Acquisition, each
of the DCAP Shareholders will execute and deliver to EXTECH a restrictive
covenant agreement (collectively, the "Restrictive Covenant Agreements")
pursuant to which each will agree that he will not, within five years of the
date of the closing, without the prior written consent of EXTECH, directly or
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indirectly, anywhere within five miles of the location of any office of any of
the DCAP Companies or any franchisee, among other things, engage or participate
in a business which is similar to or competitive with, directly or indirectly,
the DCAP Business (as defined in the DCAP Agreement). The restrictive covenants
shall cease to apply in the event (i) the particular DCAP Shareholder's
employment with EXTECH is terminated by EXTECH without "cause" (see "Employment
Agreements - Termination" above), or (ii) EXTECH defaults in its obligation to
make any post- termination payments as provided for in the Employment Agreement
and such default continues for a period of 20 days following receipt by EXTECH
of written notice thereof. The restrictive covenants contained in the
Restrictive Covenant Agreements are separate and independent from the
restrictive covenants discussed above under "Employment Agreements." The
foregoing summary of the Restrictive Covenant Agreements does not purport to be
complete and is qualified in its entirety by reference to the form of
Restrictive Covenant Agreement attached to the DCAP Agreement as Exhibit 7.9.
Composition of the Board of Directors
In the event of stockholder approval of Proposal 2 and the consummation
of the DCAP Acquisition, it is contemplated that, at the closing, the size of
the Board of Directors of EXTECH will be increased to four, Mr. Lapidus will
resign as a director of the Company and Messrs. Lang and Weinzimer will be
appointed as members of the Board of Directors. In addition, as discussed below
under "Eagle," it is contemplated that, concurrently with the closing of the
DCAP Agreement, the Company will, in connection with its issuance of Common
Shares to Eagle, further increase the size of the Board of Directors to five and
Robert M. Wallach, Eagle's designee, will be appointed as a member of the Board.
Such actions, if taken, will be done so by the Board of Directors pursuant to
the provisions of the Company's By-Laws without further stockholder action.
Biographical and other information with respect to Messrs. Lang, Weinzimer and
Wallach is set forth under "Proposal 1: Election of Directors."
The DCAP Agreement also contemplates that, at the closing, the size of
the Audit Committee and Finance Committee of the Board of Directors will be
increased to four and Messrs. Lang and Weinzimer will be appointed as members
thereof.
Agreement as to Voting
Pursuant to the DCAP Agreement, each of Messrs. Certilman, Haft, Lang
and Weinzimer has agreed that, during the eight year period following the
closing of the DCAP Agreement, (i) he will vote his respective shares of stock
of EXTECH in favor of each of the others as a director of EXTECH provided that
the particular person in whose favor the vote would be remains in the employ of
EXTECH, (ii) in the event Mr. Certilman or Mr. Haft dies or otherwise ceases to
serve as a director of EXTECH, the DCAP Shareholders will vote their respective
shares of stock of EXTECH in favor of the designee of the survivor of Mr.
Certilman or Mr. Haft (or, in the case of a reason other than death, the one
remaining as a director), (iii) in the event Mr. Lang or Mr. Weinzimer dies or
otherwise ceases to serve as a director of EXTECH, Messrs. Certilman and Haft
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will vote their respective shares of stock of EXTECH in favor of the designee of
the survivor of Mr. Lang or Mr. Weinzimer (or, in the case of a reason other
than death, the one remaining as a director) and (iv) he will not vote his
shares to (a) increase the size of the Board of Directors of EXTECH or (b) amend
the Certificate of Incorporation or By-Laws of EXTECH, in each case without the
written approval of the others. In the event of the death or other cessation of
directorship of any of Messrs. Certilman, Haft, Lang or Weinzimer during such
period, EXTECH has agreed that, unless the Board vacancy is otherwise filled as
provided for above, it will promptly call a special meeting of stockholders to
fill such vacancy.
Pursuant to the DCAP Agreement, EXTECH's By-Laws will be amended at or
prior to the closing of the DCAP Agreement to provide that, in the event the
number of directors in office is less than four, any action taken by the Board
of Directors would require the approval of all of the directors then in office.
During such time as the number of directors in office is less than four, the
Company may be unable to take actions that a majority of its Board members deems
desirable.
Sale of EXTECH Shares
Pursuant to the DCAP Agreement, while any loan made to either DCAP
Shareholder pursuant to his Employment Agreement is outstanding, he will be
obligated to sell, as soon as legally permissible, the maximum number of Common
Shares that he is permitted by law to sell, and to use the proceeds thereof to
satisfy his obligations under his respective notes. Until the foregoing notes,
the Additional Shares Notes and the Closing Notes have been satisfied in full,
neither DCAP Shareholder may sell or otherwise dispose of any of his EXTECH
Common Shares for less than $.25 per share (subject to adjustment for stock
splits and the like) without the prior written consent of the Company.
Representations and Warranties
The DCAP Agreement contains various representations and warranties of
the DCAP Shareholders to EXTECH, including with respect to the following
matters: (i) the good standing and corporate power of the DCAP Companies and
similar corporate matters; (ii) the capitalization of the DCAP Companies; (iii)
the absence of required consents, approvals and governmental filings, except for
certain specified and required regulatory filings and approvals in connection
therewith; (iv) the binding effect of the DCAP Agreement on the DCAP
Shareholders; (v) the accuracy of the financial statements of the DCAP
Companies; (vi) the absence of undisclosed liabilities; (vii) the absence of
certain changes regarding the DCAP Companies; (viii) the absence of adverse
developments with respect to the DCAP Companies; (ix) tax obligations of the
DCAP Companies; (x) assets owned or held by the DCAP Companies; (xi) certain
insurance matters; (xii) certain litigation matters and compliance with law;
(xiii) certain real property matters; (xiv) certain material agreements entered
into by the DCAP Companies; (xv) the condition of the assets of the DCAP
Companies; (xvi) certain permits and licenses held by the DCAP Companies; (xvii)
certain occupational health and safety and environmental matters; (xviii)
certain intellectual property matters; (xix) certain compensation information;
(xx) certain employee benefit plan matters; (xxi) the absence of conflicts
between the DCAP Agreement and the transactions contemplated thereby and the
Certificate of Incorporation and By-Laws of the DCAP Companies, certain
agreements
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applicable to them or any judgment, order, injunction, decree, award, law or
regulation applicable to them; (xxii) the absence of broker's fees payable;
(xxiii) employment relations; (xxiv) prior names and addresses; (xxv) certain
payments made by the DCAP Companies; (xxvi) the books and records of the DCAP
Companies; (xxvii) compliance by the DCAP Companies with the Americans with
Disabilities Act; (xxviii) information furnished by the DCAP Shareholders and
the DCAP Companies for inclusion in this Proxy Statement; and (xxix) the absence
of certain untrue or omitted facts. Such representations and warranties are
subject, in certain cases, to specified exceptions and qualifications.
The DCAP Agreement also contains various representations and warranties
of EXTECH to the DCAP Shareholders, including with respect to the following
matters: (i) the good standing and corporate power of EXTECH and similar
corporate matters; (ii) the capitalization of EXTECH; (iii) the absence of
required consents, approvals and governmental filings, except for certain
specified and required regulatory filings and approvals in connection therewith;
(iv) the binding effect of the DCAP Agreement on EXTECH; (v) the accuracy of
EXTECH's SEC reports; (vi) the absence of conflicts between the DCAP Agreement
and the transactions contemplated thereby and the Certificate of Incorporation
and By-Laws of EXTECH, certain agreements applicable to it or any judgment,
order, injunction, decree, award, law or regulation applicable to it; (vii) the
absence of certain changes regarding EXTECH; (viii) the absence of adverse
developments with respect to EXTECH; (ix) tax obligations of EXTECH; (x) assets
owned or held by EXTECH; (xi) certain insurance matters; (xii) certain
litigation matters and compliance with law; (xiii) certain real property
matters; (xiv) certain material agreements entered into by EXTECH; (xv) the
condition of the assets of EXTECH; (xvi) certain permits and licenses held by
EXTECH; (xvii) certain occupational health and safety and environmental matters;
(xviii) intellectual property matters; (xix) certain compensation information;
(xx) certain employee benefit plan matters; (xxi) the absence of broker's fees
payable; (xxii) employment relations; (xxiii) certain payments made by EXTECH;
(xxiv) the books and records of EXTECH; (xxv) compliance by EXTECH with the
Americans with Disabilities Act; (xxvi) information included in this Proxy
Statement; and (xxvii) the absence of certain untrue or omitted facts. Such
representations and warranties are subject, in certain cases, to specified
exceptions and qualifications.
Pre-Closing Covenants
The DCAP Shareholders have agreed in the DCAP Agreement that, until the
closing or earlier termination of the DCAP Agreement, they will cause the DCAP
Companies to conduct their business only in the ordinary and usual course and
make no change in any of their business practices and policies without the
written prior consent of EXTECH. Without limiting the generality of the
foregoing, the DCAP Shareholders have agreed that they will not cause or permit
any DCAP Company, without the prior written consent of EXTECH, to (i) amend its
Certificate of Incorporation or By-Laws; (ii) enter into, adopt or amend any
employment agreement or increase the compensation or fringe benefits of any
employee; (iii) acquire or dispose of any material assets outside the ordinary
course of business; (iv) acquire any business organization or division; (v) take
any other action outside the ordinary course of business; or (vi) adopt any
resolution or enter into or amend any contract with respect to any of the
foregoing.
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The DCAP Shareholders have also agreed to use their best efforts to
assure that all of their representations and warranties are true and correct as
of the closing, that no default shall occur with respect to any of their
covenants, and that all conditions to EXTECH's obligation to complete the
closing are satisfied in a timely manner.
EXTECH has agreed in the DCAP Agreement that, until the closing or
earlier termination of the DCAP Agreement, subject to certain exceptions, it
will conduct its business only in the ordinary and usual course and make no
change in any of its business practices and policies without the written prior
consent of the DCAP Shareholders. Without limiting the generality of the
foregoing, EXTECH has agreed that it will not, without the prior written consent
of the DCAP Shareholders, (i) amend its Certificate of Incorporation or By-Laws;
(ii) enter into, adopt or amend any employment agreement or increase the
compensation or fringe benefits of any employee; (iii) acquire or dispose of any
material assets outside the ordinary course of business; (iv) acquire any
business organization or division; (v) take any other action outside the
ordinary course of business; or (vi) adopt any resolution or enter into or amend
any contract with respect to any of the foregoing.
EXTECH has also agreed to use its best efforts to assure that all of
its representations and warranties are true and correct as of the closing, that
no default shall occur with respect to any of its covenants, and that all
conditions to the DCAP Shareholders' obligation to complete the closing are
satisfied in a timely manner.
No Negotiations
The DCAP Agreement provides that neither of the DCAP Shareholders will,
directly or indirectly, among other things, solicit or initiate discussions or
engage in negotiations with any person other than EXTECH with respect to the
possible acquisition, financing or change of control of any DCAP Company. The
DCAP Shareholders have also agreed that, if they or any DCAP Company receives
any unsolicited offer or proposal to enter into negotiations relating to a
potential transaction, they shall immediately notify EXTECH of such fact and
shall return any such written offer to the sending party.
Conditions to Closing
The respective obligations of EXTECH and the DCAP Shareholders to
consummate the DCAP Acquisition are subject to a number of conditions,
including, among others, (i) the approval of the DCAP Agreement and the DCAP
Acquisition by the stockholders of the Company; (ii) the approval by the
stockholders of the Company of Proposals 4, 5 and 6; (iii) the continuing
accuracy of the representations and warranties, and compliance with all
covenants and obligations, of the respective parties as set forth in the DCAP
Agreement; (iv) except as discussed below, the obtaining of all consents,
licenses and permits required from third parties, including state regulatory
agencies; (v) the parties' receipt of certain opinions of counsel with respect
to certain legal matters; (vi) the closing of the purchases of the Sterling
Foster Shares; and (vii) EXTECH and the DCAP Shareholders having entered into
the Employment Agreements and Death Buy-Out Agreements.
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EXTECH's obligation to consummate the DCAP Agreement is further
conditioned upon, among other things, (i) its receipt of an opinion of an
investment banking firm satisfactory to it to the effect that the transactions
contemplated by the DCAP Agreement are fair, from a financial viewpoint, to the
stockholders of the Company; (ii) its receipt of a "cold comfort" letter from
the certified public accountant for the DCAP Companies, in form and substance
reasonably satisfactory to the Company; (iii) its receipt of certain audited and
unaudited financial statements for the DCAP Companies; (iv) the execution by the
DCAP Shareholders of their respective Restrictive Covenant Agreements, Closing
Notes and Closing Pledge Agreements; and (v) the appointment of Messrs.
Certilman and Haft to the Board of Directors of DCAP and the Board of Directors
of each of the DCAP Companies that is wholly-owned by the DCAP Shareholders.
The DCAP Shareholders' obligation to consummate the DCAP Acquisition is
further conditioned upon, among other things, (i) the size of the Board of
Directors of the Company having been increased to four and the appointment of
the two of them as members thereof; (ii) the receipt of an opinion from tax
counsel to them to the effect that the DCAP Acquisition will not be a taxable
event to them by reason of Section 351 of the Code; (iii) the execution and
delivery to them by EXTECH of their respective Stock Option Agreements; (iv) the
tender by EXTECH to them of the Closing Loans; and (v) the acquisition by
Messrs. Certilman and Haft of their respective EXTECH Management Additional
Shares.
The obligation of Messrs. Certilman and Haft to consummate the DCAP
Acquisition is further conditioned upon, among other things, (i) EXTECH's
acquisition of the DCAP Shares; (ii) the acquisition by the DCAP Shareholders of
the 950,000 Additional Shares; (iii) the closing of the purchases of the
Sterling Foster Shares; (iv) stockholder approval of Proposals 2, 4, 5 and 6;
and (v) the execution and delivery by EXTECH to them of their respective
Employment Agreements and Stock Option Agreements.
Any condition to the performance of the parties that legally can be
waived may be so waived by the particular party. If any of the above conditions
are not fulfilled by February 28, 1999 or waived by the party entitled to invoke
such condition, such party may terminate the DCAP Agreement; however, under
certain circumstances, the parties will be obligated to consummate the DCAP
Acquisition notwithstanding the failure of a closing condition with respect to,
and the failure to deliver to EXTECH the stock of, one or more of the DCAP
Companies. In such event, the number of Common Shares of EXTECH to be issued to
the DCAP Shareholders shall not be reduced; however, the DCAP Shareholders have
agreed that, among other things, they will provide to EXTECH all of the benefits
received by either of them from the excluded DCAP Companies and will grant
EXTECH an irrevocable proxy with respect to their shares in such DCAP Companies.
Following stockholder approval of the DCAP Acquisition, EXTECH will not, without
further stockholder approval, waive any condition that by law would require such
further stockholder approval. See "Termination."
Closing of the DCAP Agreement
The closing of the DCAP Agreement is to take place on the business day
following stockholder approval of Proposals 2, 4, 5 and 6, subject to the
satisfaction or waiver of the other
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conditions to closing set forth in the DCAP Agreement (see "Conditions to
Closing"), unless otherwise agreed to in writing by the parties.
Indemnification
The parties have agreed that their respective representations and
warranties contained in the DCAP Agreement generally shall survive the closing
for a period of two years.
The DCAP Shareholders have agreed, jointly and severally, that they
will indemnify and hold harmless EXTECH, among others, against and in respect
of, among other things, any and all damages, losses, costs and expenses that
result from, relate to or arise out of any misrepresentation, breach of warranty
or nonfulfillment of any agreement or covenant on the part of either DCAP
Shareholder under or in connection with the DCAP Agreement and any untrue
statement or omission of material fact in this Proxy Statement which is based
upon information furnished by any DCAP Shareholder.
EXTECH has agreed to indemnify and hold harmless the DCAP Shareholders
against and in respect of, among other things, any and all damages, losses,
costs and expenses incurred or suffered by the DCAP Shareholders that result
from, relate to or arise out of any misrepresentation, breach of warranty or
nonfulfillment of any agreement or covenant on the part of EXTECH under or in
connection with the DCAP Agreement, and any untrue statement or omission of
material fact in this Proxy Statement, except to the extent based upon
information furnished by either DCAP Shareholder. Neither the DCAP Shareholders
nor EXTECH shall be liable to the other unless and until the aggregate claims,
losses, costs and expenses resulting from indemnifiable matters exceeds $25,000
and then shall only be liable for the excess above such amount. The total
indemnification to which EXTECH shall be entitled under the indemnification
provisions of the DCAP Agreement (exclusive of legal fees and expenses) shall be
limited to $950,000.
At the option of EXTECH, any indemnification obligation of EXTECH under
the DCAP Agreement may be satisfied in whole or in part through the issuance of
additional Common Shares of EXTECH to the DCAP Shareholders based upon a value
of $.25 per Common Share.
At the option of the DCAP Shareholders, any indemnification obligation
of them under the DCAP Agreement may be satisfied in whole or in part through
the redelivery to EXTECH of any of the EXTECH Common Shares acquired by them
pursuant to the DCAP Agreement or other Common Shares of EXTECH, in each case
based upon a value of $.25 per share.
Termination
The DCAP Agreement may be terminated at any time before the closing,
whether before or after the approval by the Company's stockholders of the DCAP
Acquisition, (i) by mutual consent of the Board of Directors of the Company and
the DCAP Shareholders; (ii) by either the Company or the DCAP Shareholders if
any of the conditions to their obligation to close have not been fulfilled on or
prior to February 28, 1999 or shall become incapable of fulfillment, unless the
condition was not fulfilled as a result of any action or inaction by the
terminating party or was waived.
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If the DCAP Agreement is terminated as provided for above, no party
shall have any further liability or obligation except for any liability that may
arise from a breach of the confidentiality provisions of the DCAP Agreement or
as a result of a party's willful failure to consummate the DCAP Acquisition or
for any breach of representation, warranty or covenant.
Amendment
The DCAP Agreement may be amended by a written instrument signed by the
Company and the DCAP Shareholders at any time before or after receipt of
stockholder approval of the DCAP Agreement and the DCAP Acquisition; provided,
however, that after such approval, no amendment may be made that by law requires
further approval by the Company's stockholders without the further approval of
such stockholders.
Regulatory Requirements
One of the DCAP Companies, Payments, Inc., is licensed as a premium
finance agency by the New York State Banking Department. It is contemplated that
such entity will provide premium financing to the clients of the DCAP Companies.
Payments, Inc. is wholly-owned by the DCAP Shareholders. An application has been
made to the New York State Banking Department for approval of the transfer of
the outstanding stock of Payments, Inc. to EXTECH pursuant to the DCAP
Agreement. No approval has yet been obtained and no assurances can be given in
this regard.
Accounting Treatment
The DCAP Acquisition will be accounted for as a purchase. See "Pro
Forma Financial Statements."
Federal Income Tax Consequences
Nonrecognition of Gain or Loss
Under Section 1032 of the Code, EXTECH will not recognize any gain or
loss on the issuance of the Acquisition Shares in consideration for the DCAP
Shares or upon issuance of the 950,000 Additional Shares and EXTECH Management
Additional Shares in consideration for cash and promissory notes, as discussed
under "The DCAP Agreement - Acquisition of Common Shares."
Basis of Properties Acquired in DCAP Acquisition
The parties to the DCAP Agreement intend that Section 351 of the Code
will apply to the proposed exchange of the DCAP Shares for the Acquisition
Shares (the "Exchange"). Section 351 provides for nonrecognition of gain or loss
on the Exchange with respect to the transferors of property to EXTECH, i.e., the
DCAP Shareholders. EXTECH will not recognize any gain or loss on the Exchange
whether or not Section 351 applies to the DCAP Shareholders.
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Assuming that Section 351 applies to the proposed Exchange, the
original basis of EXTECH in the DCAP Shares acquired pursuant to the DCAP
Agreement will be governed by Section 362(a)(1) of the Code. Pursuant to such
provision, property acquired by a corporation in an exchange solely for its
stock in connection with a transaction to which Section 351 applies has an
original basis equal to the basis in the hands of the transferor ("carryover
basis"). Accordingly, based on the assumed compliance with Section 351, EXTECH
will for tax purposes record a carryover basis for the DCAP Shares acquired
pursuant to the DCAP Agreement.
Effect of Ownership Change on EXTECH Carryovers
The consolidated net operating loss carryover and the consolidated
carryover of excess general business tax credits of the EXTECH consolidated
return group may be adversely affected by the changes in the stock ownership of
EXTECH as a result of the issuance of Common Shares to the DCAP Shareholders and
Eagle. Since these new stockholders in EXTECH will own more than 50% of the
outstanding Common Shares of EXTECH after the proposed transactions, the
consolidated net operating loss carryover of EXTECH may be materially reduced
under the provisions of Section 382 of the Code.
Since the DCAP Shareholders and Eagle will, upon consummation of the
proposed transactions, own more than 50% of the outstanding stock of EXTECH,
there will be an "ownership change" of EXTECH stock within the meaning of
Section 382(g) of the Code. Following such ownership change, the amount of any
EXTECH consolidated taxable income for any post-change year (i.e., any year
which ends after the date of the ownership change, including the post-change
period of the change year) which may be offset by the pre-change consolidated
net operating loss carryover cannot exceed the consolidated Section 382
limitation for such year, i.e., an amount equal to the value of the EXTECH group
multiplied by the applicable long-term tax exempt rate in effect at the time of
the ownership change.
If all businesses conducted by the EXTECH group at the time of the
ownership change are discontinued during the two-year period beginning on the
date of the ownership change, the consolidated Section 382 limitation generally
will be zero for all post-change years (including the post-change portion of the
change year).
Effect of Transaction on DCAP Carryovers; Consolidated Group
As discussed above, EXTECH proposes to acquire 100% of the outstanding
stock of certain of the DCAP Companies ("100% subsidiaries"), 67% of certain of
the DCAP Companies ("67% subsidiaries"), and generally 50% of the remaining DCAP
Companies ("50% subsidiaries").
Under Section 1504(a) of the Code, the 50% subsidiaries will not become
members of the EXTECH consolidated return group. Accordingly, each will need to
file a separate tax return. EXTECH's acquisition of the stock of these 50%
subsidiaries, taken in isolation, will not cause an "ownership change" with
respect to their stock under Section 382(g) which requires a more than 50
percentage point change in stock ownership. However, the ownership change in
Section 382(g) is tested over a three year period. Accordingly, if coupled with
any other change of stock ownership
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within the three year testing period, the EXTECH acquisition will trigger an
ownership change under Section 382(g). Given such an ownership change, the
particular 50% subsidiary will be subject to a separately computed Section 382
limitation on its pre-change loss carryovers with respect to its taxable income
in its post-change years, as explained above.
The acquisition of the 67% subsidiaries by EXTECH will result in an
"ownership change" under Section 382(g) as to each such subsidiary. These
subsidiaries also will not become members of the EXTECH consolidated return
group. Consequently, each will need to file a separate tax return and each will
be subject to a separately computed Section 382 limitation on its pre-change
loss carryovers with respect to its taxable income in its post-change years, as
explained above.
The 100% subsidiaries will become members of the EXTECH consolidated
return group for all periods commencing on the acquisition by EXTECH of their
stock. As members of the group, their income or loss effective with the closing
of the DCAP Acquisition will be includable in EXTECH's consolidated return and
they will be subject to the consolidated Section 382 limitation explained above.
In addition, generally for a five year period, each such subsidiary will be
subject to a separately computed Section 382 limitation with respect to the
carryover of its pre-change net operating loss carryovers to consolidated
taxable income in post-change years, as explained above. In addition, each such
100% subsidiary will be subject to the separate return limitation year ("SRLY")
limitation with respect to its pre-change net operating loss carryovers.
Generally the SRLY limitation limits the utilization of the SRLY member's
pre-affiliation net operating loss carryovers to the amount of its separate
taxable income for the year which is contributed to the consolidated income tax
return.
Termination of Subchapter S Elections
Under Section 1362 (d)(2) of the Code, any Subchapter S election by a
DCAP Company will terminate effective on the date of the acquisition by EXTECH
of some or all of its stock. Each such corporation will be required to file two
short year income tax returns for the year in which termination occurs - a short
period "S return" for the portion of the year which ends on the day before
termination occurs and a short year return as a "C corporation" for the balance
of the tax year (either as part of the EXTECH consolidated group, if a 100%
subsidiary, or separately, if a 50% subsidiary or 67% subsidiary).
Accounting Method
The DCAP Companies have reported their taxable income by utilizing the
cash method of accounting. Section 448 of the Code prohibits the use of the cash
method of accounting to any "C corporation" whose gross receipts are $5,000,000
or more. The gross receipts test is applied with a rolling average of gross
receipts over the three years preceding the taxable year. The gross receipts of
two or more corporations (including "S corporations") are aggregated in
computing the average if the same persons actually (or constructively by reason
of rules of attribution) own more than 50% of their capital stock.
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If Section 448 applies, the affected DCAP Companies will be required to
change to another method of accounting (usually the accrual method of
accounting) for the first tax year following the end of the foregoing three year
averaging period.
THE FOREGOING DISCUSSION OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF
THE DCAP ACQUISITION IS A SUMMARY ONLY AND IS BASED ON EXISTING TAX LAW AS OF
THE DATE OF THIS PROXY STATEMENT, WHICH MAY DIFFER ON THE DATE OF THE CLOSING.
THE FOREGOING DISCUSSION IS NOT BINDING ON THE INTERNAL REVENUE SERVICE, AND NO
RULING FROM THE INTERNAL REVENUE SERVICE HAS BEEN SOUGHT OR WILL BE SOUGHT WITH
RESPECT TO SUCH TAX CONSEQUENCES. IN ADDITION, THE FOREGOING DISCUSSION DOES NOT
CONSIDER THE EFFECT OF ANY APPLICABLE FOREIGN, STATE, LOCAL OR OTHER TAX LAWS.
Eagle
The Company and Eagle have entered into the Eagle Subscription
Agreement which provides for the issuance and sale by the Company to Eagle of
1,486,893 Common Shares for an aggregate purchase price of approximately
$1,000,000, or $.67 per share (the "Eagle Issuance"). The Eagle Issuance is to
be made concurrently with the closing of the DCAP Agreement. Each of the parties
has the right to terminate the Eagle Subscription Agreement if the closing shall
not have occurred by February 28, 1999. The closing of the Eagle Subscription
Agreement is not a condition to the closing of the DCAP Acquisition. In the
event the Eagle Subscription Agreement is not consummated, the Company will seek
to increase the size of the private placement described in "Management's
Discussion and Analysis or Plan of Operation - EXTECH" by $1,000,000.
Eagle is a New Jersey insurance company wholly-owned by The Robert
Plan, one of the largest insurers of assigned-risk drivers in the United States.
Pursuant to separate agency agreements between certain DCAP Companies and
certain insurance company subsidiaries of The Robert Plan, such DCAP Companies
have been appointed agents of the insurance companies with regard to the
offering of automobile and other insurance products. Certilman Balin Adler &
Hyman, LLP serves as counsel to The Robert Plan with respect to certain matters
(such firm, however, has not served as counsel to Eagle in connection with the
Eagle Subscription Agreement).
Pursuant to the Eagle Subscription Agreement, at the closing, the size
of the Board of Directors of the Company is to be increased to five and Robert
M. Wallach, Eagle's Vice President and the President and Chief Executive Officer
of The Robert Plan, is to be appointed as a member of the Board of Directors.
The Company has agreed that, during the five year period following the closing,
provided that Eagle remains the beneficial owner of at least 1,000,000 Common
Shares (subject to adjustment for stock splits and the like), the Company shall
continue to nominate Mr.
Wallach as a director.
Stock Ownership Following the DCAP Acquisition and Eagle Issuance
The following table sets forth certain information regarding the
beneficial ownership of the Company's Common Shares following the DCAP
Acquisition, the issuance of the Common Shares
54
<PAGE>
contemplated by the DCAP Agreement, the purchases of the Sterling Foster Shares
and the issuance of the Eagle Shares. Such information is presented for (i) each
person who the Company believes will be the beneficial owner of more than 5% of
the Company's outstanding Common Shares following such events, (ii) each person
who it is contemplated will be a director of the Company following such events,
(iii) each person listed in the Summary Compensation Table under "Executive
Compensation," and (iv) all persons who it is contemplated will be the Company's
executive officers and directors following such events, as a group.
Name and Address Number of Shares Approximate
of Beneficial Owner Beneficially Owned Percent of Class
Kevin Lang...................... 2,575,000(1) 21.9%
2545 Hempstead Turnpike
East Meadow, New York
AbrahamWeinzimer......... 2,575,000(1) 21.9%
2545 Hempstead Turnpike
East Meadow, New York
Jay M. Haft...................... 1,580,393(1)(2)(3) 13.4%
201 S. Biscayne Blvd.
Suite 3000
Miami, Florida
Morton L. Certilman......... 1,486,893(1)(2)(4) 12.6%
The Financial Center
at Mitchel Field
90 Merrick Avenue
East Meadow, New York
Robert M. Wallach............ 1,486,893(5) 12.6%
c/o The Robert Plan Corporation
999 Stewart Avenue
Bethpage, New York
All executive officers
and directors as a group
(6 persons)........................ 9,731,179(1)(2)(3) 82.6%
(4)(5)(6)
(1) Reference is made to "The DCAP Agreement - Agreement as to Voting" for a
discussion of a certain agreement as to voting among Messrs. Lang,
Weinzimer, Certilman and Haft.
55
<PAGE>
(2) As previously indicated, each of Messrs. Certilman and Haft has previously
filed a Schedule 13D and amendments thereto under the Exchange Act with
respect to their respective equity interests in the Company. In view of
their intention to consult with each other with respect to the acquisition,
voting and disposition of their respective shares, Messrs. Certilman and
Haft may be deemed a group. Accordingly, following the DCAP Acquisition,
the group of Messrs. Certilman and Haft would beneficially own 3,067,286
Common Shares. Such amount would represent approximately 26.0% of the
outstanding Common Shares of the Company following the DCAP Acquisition and
the Eagle Issuance. However, as indicated above, each of Messrs. Certilman
and Haft independently makes his own decisions with respect to the
acquisition, voting and disposition of the Common Shares directly owned by
him and neither Mr. Certilman nor Mr. Haft has any economic interest in the
Common Shares directly owned by the other.
(3) Includes shares held in a retirement trust for the benefit of Mr. Haft.
(4) Includes shares held in a retirement trust for the benefit of Mr.
Certilman.
(5) Represents shares owned by Eagle, of which Mr. Wallach, a contemplated new
director of the Company, is a Vice President. Eagle is a wholly-owned
subsidiary of The Robert Plan, of which Mr. Wallach is President and Chief
Executive Officer. The inclusion of the shares for Mr. Wallach shall not be
deemed an admission that he is the beneficial owner of such shares.
(6) Includes 5,000 shares held in a retirement trust for the benefit of an
executive officer and 22,000 shares held by such executive officer's wife.
Such executive officer disclaims beneficial ownership of the shares owned
by his wife.
Price Range of Common Shares
The Company's Common Shares are traded in the over-the-counter market
on the Bulletin Board under the symbol "EXTH". The following table sets forth,
for the periods indicated, the high and low closing bid prices for the Company's
Common Shares as reported by the Bulletin Board:
1996 Calendar Year High Low
First Quarter $ 1/4 $ 1/16
Second Quarter 7/16 1/4
Third Quarter 7/16 3/8
Fourth Quarter 3/8 3/8
56
<PAGE>
1997 Calendar Year High Low
First Quarter $ 1/2 $ 3/8
Second Quarter 1/2 1/2
Third Quarter 1-1/4 1/2
Fourth Quarter 11/16
1998 Calendar Year High Low
First Quarter $ 3/4 $ 11/16
Second Quarter 13/16 9/16
Third Quarter 1-13/16 5/8
Fourth Quarter
1999 Calendar Year
First Quarter
(through ______, 1999)
On ________, 1999, the closing bid price for the Company's Common
Shares, as reported by the Bulletin Board, was $__________ per share.
The above quotations reflect interdealer prices, without retail
mark-up, mark-down or commission, and may not necessarily represent actual
transactions.
As of December 31, 1998, there were approximately 3,000 record holders
of the Company's Common Shares.
The DCAP Shares are privately held and there is no trading market for
such stock.
The Company has neither declared nor paid any cash dividends on its
Common Shares during its two most recent fiscal years and the Board of Directors
does not contemplate the payment of dividends in the foreseeable future. Any
decisions as to the future payment of dividends will depend on the earnings and
financial position of the Company and such other factors as the Board of
Directors deems relevant.
Pro Forma Financial Statements
The following unaudited pro forma condensed consolidated financial
statements give effect to the acquisition by EXTECH of the DCAP Shares accounted
for as a purchase transaction and the issuance of Common Shares to Eagle. These
pro forma financial statements are presented for illustrative purposes only, and
therefore are not necessarily indicative of the operating results and financial
position that might have been achieved had the DCAP Acquisition occurred as of
an earlier
57
<PAGE>
date, nor are they necessarily indicative of the operating results and financial
position which may occur in the future.
A pro forma condensed consolidated balance sheet is provided as of
September 30, 1998, giving effect to the DCAP Acquisition and Eagle Issuance as
though they had been consummated on that date. Pro forma condensed consolidated
statements of income are provided for the nine month period ended September 30,
1998 and the year ended December 31, 1997, giving effect to the DCAP Acquisition
as though it had occurred on January 1, 1997.
The pro forma financial statements are based on preliminary estimates
of values and transaction costs and preliminary appraisals. The actual recording
of the transactions will be based on final appraisals, values and transaction
costs. Accordingly, the actual recording of the transactions can be expected to
differ from these pro forma financial statements.
The historical consolidated statement of income presented for the year
ended December 31, 1997 is derived from the separate historical consolidated
financial statements of EXTECH and combined financial statements of the DCAP
Companies, and should be read in conjunction with the companies' separate
financial statements incorporated by reference or included elsewhere herein. The
historical condensed financial statement for the nine months ended September 30,
1998 is derived from the historical interim consolidated financial statements of
EXTECH and combined financial statements of the DCAP Companies, incorporated by
reference or included elsewhere herein, and have been prepared in accordance
with generally accepted accounting principles applicable to interim financial
information, and, in the opinion of the respective managements of EXTECH and
DCAP, include all adjustments necessary for a fair presentation of the financial
information for such interim periods.
58
<PAGE>
<TABLE>
<CAPTION>
EXTECH CORPORATION
AND
DEALERS CHOICE AUTOMOTIVE PLANNING INC. AND AFFILIATED COMPANIES
PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEETS
September 30, 1998
(Unaudited)
Historical Pro Forma
EXTECH DCAP
ASSETS Corporation Companies Adjustments Consolidated
Current assets:
<S> <C> <C> <C> <C> <C>
Cash and cash equival $ 406,275 $ 93,226 9,500 (2) $1,393,219
113,000 (3)
(225,000) (4)
996,218 (6)
Accounts receivable, net 78,383 498,558 - 576,941
Notes and other receivables 822,438 - (795,238) (5) 252,200
225,000 (4)
Inventories 8,103 - - 8,103
Prepaid expenses and other current assets 40,757 73,090 (25,933) (1) 87,914
--------- --------- -------- ---------
Total Current Assets 1,355,956 664,874 297,547 2,318,377
PROPERTY AND EQUIPMENT, net 101,216 1,021,530 - 1,122,746
LOAN RECEIVABLE - SHAREHOLDERS - 358,764 - 358,764
DEPOSITS 5,000 71,889 - 76,889
DEFERRED INCOME TAXES - 187,900 (127,873) (1) 60,027
GOODWILL - - 2,420,352 (1) 2,420,352
OTHER 50,527 - - 50,527
--------- --------- --------- ---------
$1,512,699 $2,304,957 $2,590,026 $6,407,682
========= ========= ========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable and other accrued expenses $ 103,399 $ 968,909 $ (45,238) (5) $1,027,070
Notes payable - 955,388 (750,000) (5) 205,388
Debentures payable 154,200 - - 154,200
Current portion of long-term debt - 158,044 - 158,044
Income taxes payable, current 11,430 25,708 - 37,138
--------- --------- --------- ---------
Total current liabilities 269,029 2,108,049 (795,238) 1,581,840
--------- --------- --------- ---------
MINORITY INTEREST 560 1,181,243 1,181,803
LONG-TERM DEBT - 154,745 154,745
DEFERRED REVENUE 302,466 302,466
DEFERRED INCOME TAXES 2,700 (2,700) (1) -
Stockholders' equity:
Common stock, $.01 par value, authorized
10,000,000 and 25,000,000 shares,
respectively; issued and outstanding
5,591,367 and 11,780,260 shares, respectively 55,914 - 33,000 (1) 117,803
9,500 (2)
4,520 (3)
14,869 (6)
Common stock - 32,583 (32,583) (1) -
Capital in excess of par 5,264,950 326,199 (326,199) (1) 7,374,779
- - 792,000 (1) -
- - 228,000 (2) -
- - 108,480 (3) -
- - 981,349 (6) -
Deficit (4,077,754) (1,704,256) 1,704,256 (1) (4,077,754)
--------- --------- --------- ---------
1,243,110 (1,345,474) 3,517,192 3,414,828
Stockholders' notes receivable - - (228,000) (2) (228,000)
Treasury stock - (98,772) 98,772 (1) -
--------- --------- --------- ---------
1,243,110 (1,444,246) 3,387,964 3,186,828
--------- --------- --------- ---------
$1,512,699 $2,304,957 $2,590,026 $6,407,682
========= ========= ========= =========
</TABLE>
See accompanying notes to pro forma condensed consolidated financial statements
59
<PAGE>
EXTECH CORPORATION
AND
DEALERS CHOICE AUTOMOTIVE PLANNING INC.
AND AFFILIATED COMPANIES
NOTES TO UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED BALANCE SHEET
SEPTEMBER 30, 1998
1. To record the estimated purchase price of $851,000 (including aggregate
estimated related acquisition costs of $26,000 which has been paid as of
September 30, 1998) for the DCAP Acquisition and the elimination of the
historical equity capitalization of the DCAP Companies in accordance with
the purchase method of accounting. Of such estimated purchase price,
$825,000 represents the issuance of 3,300,000 Common Shares of EXTECH to
the DCAP Shareholders in exchange for the DCAP Shares. The value of the
EXTECH Common Shares of $.25 per share is based on independent appraisal.
The preliminary allocation of the purchase price paid for the net assets
of the DCAP Companies based upon the estimated fair values of such net
assets is as follows:
Estimated acquisition costs $ 851,000
Historical negative book value of net assets at
September 30, 1998 1,569,000
---------
Acquisition goodwill $2,420,000
==========
On an ongoing basis, the Company will evaluate the carrying value of
intangible assets versus the discounted cash benefit expected to be
realized from the performance of the underlying operations and adjust for
any impairment in value.
2. To record the issuance of 950,000 Common Shares of EXTECH to the DCAP
Shareholders at a purchase price of $.25 per share in consideration of
cash of $9,500 and notes aggregating $228,000. The notes will be payable
in six equal annual installments of principal and interest commencing
April 15, 2001 and will bear interest at the rate of 6% per annum.
3. To record the issuance of 452,000 Common Shares of EXTECH to certain
stockholders of EXTECH at a purchase price of $.25 per share payable in
cash.
4. Represents loans to the DCAP Shareholders in connection with the purchase
of 950,000 Common Shares of EXTECH directly from an existing EXTECH
stockholder. The loans will be payable in six equal annual installments of
principal and interest commencing April 15, 2001 and will bear interest at
the rate of 6% per annum.
5. Elimination of intercompany loans and related accrued interest.
6. To record the issuance of 1,486,893 Common Shares of EXTECH to Eagle. On
October 2, 1998, Eagle entered into a subscription agreement to acquire the
shares at $.67 per share. The consummation of the transaction is
contemplated to take place concurrently with the closing of the DCAP
Agreement.
60
<PAGE>
<TABLE>
<CAPTION>
EXTECH CORPORATION
AND
DEALERS CHOICE AUTOMOTIVE PLANNING INC. AND AFFILIATED COMPANIES
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
NINE MONTHS ENDED SEPTEMBER 30, 1998
(Unaudited)
Historical Pro Forma
---------- ---------
EXTECH DCAP
Corporation Companies Adjustments Consolidated
----------- --------- ----------- ------------
<S> <C> <C> <C> <C> <C>
Revenues $ 723,226 $6,173,809 $ 19,500 (4) $ 6,874,035
(42,500) (1)
73,000 (2)
Operating expenses 798,335 6,727,990 (42,500) (1) 7,556,825
--------- --------- ---------- ----------
Loss before provision for income
taxes and minority interest (75,109) (554,181) (53,500) (682,790)
Benefit of income taxes - (90,282) - (90,282)
--------- --------- ---------- ----------
Loss before minority interest (75,109) (463,899) (53,500) (592,508)
Minority interest in net loss of affiliates - (98,414) - (98,414)
--------- --------- ---------- ----------
Net loss $ (75,109) $ (365,485) $ (53,500) $ (494,094)
========= ========= ========== ==========
Net loss per common share:
Basic $ (0.01) (3) $ (0.04)
========= ==========
Diluted $ (0.01) (3) $ (0.04)
========= ==========
Weighted average number of shares outstanding:
Basic 5,591,367 (3) 11,780,260
========= ==========
Diluted 5,591,367 (3) 11,780,260
========= ==========
</TABLE>
See accompanying notes to pro forma condensed consolidated financial statements
61
<PAGE>
EXTECH CORPORATION
AND
DEALERS CHOICE AUTOMOTIVE PLANNING INC.
AND AFFILIATED COMPANIES
NOTES TO UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED STATEMENT OF
NINE MONTHS ENDED SEPTEMBER 30, 1998
1. Elimination of interest charged on intercompany balances.
2. Reflects amortization of goodwill based on the preliminary purchase
accounting allocations related to intangible assets acquired in
connection with the acquisition of the DCAP Companies by EXTECH. The
goodwill is being amortized over a 25 year life.
3. Basic and Diluted pro forma loss per share is based on historical
weighted average number of Common Shares and equivalents of EXTECH
outstanding during the nine months ended September 30, 1998, adjusted for
the exchange of DCAP Shares for Common Shares of EXTECH.
4. To accrue interest on notes issued in connection with the DCAP
Acquisition.
62
<PAGE>
<TABLE>
<CAPTION>
EXTECH CORPORATION
AND
DEALERS CHOICE AUTOMOTIVE PLANNING INC. AND AFFILIATED COMPANIES
PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1997
(Unaudited)
Historical Pro Forma
EXTECH DCAP
Corporation Companies Adjustments Consolidated
<S> <C> <C> <C> <C> <C>
Revenues $ 996,618 $8,486,540 $ 26,000 (4) $ 9,505,158
4,000 (1)
97,000 (2)
Operating expenses 1,136,616 8,959,984 (4,000) (1) 10,189,600
--------- --------- --------- ----------
Operating loss (139,998) (473,444) (71,000) (684,442)
Other income - 535,334 - 535,334
Net income (loss) before provision for
income taxes and minority interest (139,998) 61,890 (71,000) (149,108)
Provision for income taxes 3,994 43,988 - 47,982
-------- --------- --------- ----------
Net income (loss) before minority interest (143,992) 17,902 (71,000) (197,090)
Minority interest in net loss of affiliates - (41,192) - (41,192)
--------- --------- --------- ----------
Net income (loss) $ (143,992) $ 59,094 $ (71,000) $ (155,898)
======== ========= ========= ==========
Net loss per common share:
Basic $ (0.03) (3) $ (0.01)
========= ==========
Diluted $ (0.03) (3) $ (0.01)
========= ==========
Weighted average number of shares outstanding:
Basic 5,591,367 (3) 11,780,260
========= ==========
Diluted 5,591,367 (3) 11,780,260
========= ==========
</TABLE>
See accompanying notes to pro forma condensed consolidated financial statements
63
<PAGE>
EXTECH CORPORATION
AND
DEALERS CHOICE AUTOMOTIVE PLANNING INC.
AND AFFILIATED COMPANIES
NOTES TO UNAUDITED PRO FORMA CONDENSED
CONSOLIDATED STATEMENT OF INCOME
YEAR ENDED DECEMBER 31, 1997
1. Elimination of interest charged on intercompany balances.
2. Reflects amortization of goodwill based on the preliminary purchase
accounting allocations related to intangible assets acquired in
connection with the acquisition of the DCAP Companies by EXTECH. The
goodwill is being amortized over a 25 year life.
3. Basic and Diluted pro forma loss per share is based on historical
weighted average number of Common Shares and equivalents of EXTECH
outstanding during the year ended December 31, 1997, adjusted for the
exchange of DCAP Shares for Common Shares of EXTECH.
4. To accrue interest on notes issued in connection with the DCAP
Acquisition.
64
<PAGE>
Management's Discussion and Analysis or Plan of Operation
EXTECH
Reference is made to Item 6 of the Company's 1997 Form 10-KSB and Item
2 of Part I of the Company's Quarterly Report on Form 10-QSB for the period
ended September 30, 1998, as amended (the "September 30, 1998 Form 10-QSB"),
which Items 6 and 2 are incorporated herein by reference.
In January 1999, the Company entered into a letter of intent with a
placement agent with respect to a "best efforts" private placement of between
$1,500,000 and $2,000,000 in equity securities. It is contemplated that the
proceeds of the offering, which is anticipated to commence shortly following the
closing of the DCAP Acquisition, will be utilized in connection with increased
advertising and marketing efforts by the DCAP Companies. No definitive agreement
has been executed with regard to the private placement and no assurances can be
given that it will be undertaken or consummated.
The securities offered in the private placement will not be registered
under the Securities Act and may not be offered or sold in the United States
absent registration under the Securities Act or an exemption from the
registration requirements thereof. The letter of intent provides for the grant
of certain registration rights to the purchasers of the offered securities. See
"Proposal 4: Amendment to Certificate of Incorporation to Increase Number of
Authorized Shares."
DCAP
Results of Operations
Year Ended December 31, 1997 Compared to Year Ended December 31, 1996
Revenues
Combined revenue for the year ended December 31, 1997 was $8,486,540, a
decrease of $851,415, or 9.1%, as compared to combined revenue of $9,337,955 for
the year ended December 31, 1996. The decrease was primarily the result of the
following:
(a) a reduction in the amount of performance-based revenue
received from a third-party premium financing source (based
upon the number of applications submitted for premium
financing) as a result of pending litigation with this
financing source (based on alleged breaches of contract, among
other claims, by the parties) and the resulting cessation of
business dealings between the parties (approximately
$223,000);
(b) reduced sales of motor clubs and other related fees as a
result of the reduced revenue from assigned risk policies
which generate higher motor clubs sales (approximately
$63,000);
65
<PAGE>
(c) decreased renewals due to the sale of a portion of the "book
of business" described below for approximately $535,000; and
(d) the DCAP Companies' only non-assigned risk carrier in New
Jersey going out of business in 1996 (approximately $205,000).
Operating Expenses
Selling Expenses - Combined selling expenses were $2,649,304 for the
year ended December 31, 1997, representing a decrease of $306,980, or 10.4%, as
compared to $2,956,284 for the year ended December 31, 1996. The decrease was
primarily attributable to a reduction of radio and print advertising caused by a
lack of working capital.
General and Administrative Expenses: Combined general and
administrative expenses were $6,050,690 for the year ended December 31, 1997,
representing a decrease of $604,488, or 9.1%, as compared to $6,655,178 for the
year ended December 31, 1996. This decrease is primarily the result of
automation efficiencies and management's cost cutting efforts in the areas of
salaries and office expenses, combined with a reduction in the expenses related
to the sales of motor clubs and other related fees.
Sale of Book of Business: In May 1997, the DCAP Companies sold, for
$535,334, the potential future commissions on renewal policies on Progressive
Northeastern Insurance Company automobile policies sold prior to May 30, 1997.
Such policies represented approximately 15% of the "book of business" of the
DCAP Companies. No such sale occurred in 1996. The DCAP Companies continue to
write insurance through Progressive Northeastern Insurance Company.
Interest Expense: Combined interest expense for the year ended December
31, 1997 was $52,269 as compared to $84,371 for the year ended December 31,
1996. The net decrease of $32,102 is primarily attributable to certain notes
being paid off during 1997, combined with the average outstanding debt being
less in 1997 than 1996.
Provision for Income Taxes: Provision for income taxes represents the
minimum taxes or the taxes (benefit) on the individual DCAP Companies' income
(loss) included in the Combined Statements of Operations.
Minority Interest in Affiliated Companies: Minority interest in
affiliated companies was ($41,192) for the year ended December 31, 1997, as
compared to ($261,232) for the year ended December 31, 1996. This represents the
interest of minority shareholders in the net income (loss) of the individual
DCAP Companies in the Combined Statements of Operations. The change of $220,040
relates to the decrease of $632,729 in the net loss before minority interest for
the year ended December 31, 1997, as compared to the year ended December 31,
1996.
66
<PAGE>
Nine Months Ended September 30, 1998 Compared to Nine Months Ended
September 30, 1997
Revenue
Combined revenue for the nine months ended September 30, 1998 was
$6,173,809, a decrease of $201,154, or 3.2%, as compared to combined revenue of
$6,374,963 for the nine months ended September 30, 1997. The decrease was
primarily the result of major insurance carriers (Geico, Allstate and Colonial
Pacific) entering the DCAP Companies' market, coupled with a decrease in
renewals due to the sale of a portion of the "book of business" in May 1997, as
discussed above.
Operating Expenses
Selling Expenses - Combined selling expenses were $1,885,371 for the
nine months ended September 30, 1998, representing a decrease of $108,571, or
5.4%, as compared to $1,993,942 for the nine months ended September 30, 1997.
This decrease was primarily attributable to a reduction of radio and print
advertising caused by a lack of working capital.
General and Administrative Expenses - Combined general and
administrative expenses were $4,628,343 for the nine months ended September 30,
1998, representing an increase of $59,145, or 1.3%, as compared to $4,569,198
for the nine months ended September 30, 1997. This increase is primarily the
result of payroll and other operating costs associated with the opening of new
stores, coupled with the professional fees associated with the proposed
transaction with EXTECH.
Sale of Book of Business: As discussed above, in May 1997, the DCAP
Companies sold, for $535,334, the potential future commissions on renewal
policies on Progressive Northeastern Insurance Company automobile policies sold
prior to May 30, 1997. No such sale occurred during the nine months ended
September 30, 1998.
Interest Expense. Combined interest expense for the nine months ended
September 30, 1998 was $63,776 as compared to $16,508 for the nine months ended
September 30, 1997. The increase of $47,268 is primarily attributable to the
borrowings by DCAP from EXTECH between November 1997 and May 1998. See "The DCAP
Agreement - Loans."
Provision for Income Taxes: Provision for income taxes represents the
minimum taxes or the taxes (benefit) on the individual DCAP Companies' income
(loss) included in the Combined Statements of Operations.
Minority Interest in Affiliated Companies: Minority interest in
affiliated companies was ($98,414) for the nine months ended September 30,
1998, as compared to $112,591 for the nine months ended September 30, 1997. This
represents the interest of minority shareholders in the net income (loss) of the
individual DCAP Companies in the Combined Statements of Operations. The
67
<PAGE>
change of $211,005 relates to the increase of $614,790 in the net loss before
minority interest for the nine months ended September 30, 1998, as compared to
the nine months ended September 30, 1997.
Liquidity and Capital Resources
As of December 31, 1997, the DCAP Companies had a combined cash
overdraft of $2,204 as compared to $70,252 at December 31, 1996, representing a
decrease in the overdraft of $68,048. Such decrease was primarily the result of
an increase in notes payable (including $325,000 advanced by EXTECH) and an
investment by minority shareholders, offset by a reduction in long-term debt,
purchases of fixed assets and an increase in loans receivable from shareholders
and related companies.
At September 30, 1998, the DCAP Companies had a combined cash balance
of $93,226, representing an increase in cash of $95,430 since December 31, 1997.
This increase was primarily the result of an increase in notes payable
(including $425,000 advanced by EXTECH), offset by cash used in operating
activities and losses attributable to minority shareholders.
Capital expenditures were $75,693 during the year ended December 31,
1997, and $41,334 during the nine months ended September 30, 1998, primarily
representing computer equipment and leasehold improvements for stores opened
during 1997. At September 30, 1998, the DCAP Companies had no material
commitments for capital expenditures.
At September 30, 1998, DCAP had $80,000 available under its line of
credit with Chase Manhattan Bank. At September 30, 1998, the DCAP Companies had
a combined working capital deficit of $1,443,175. DCAP management believes that,
in the event the contemplated transaction with EXTECH is not consummated or the
DCAP Companies are unable to obtain alternate financing, the DCAP Companies may
not have sufficient resources to continue operations.
Year 2000
The Year 2000 ("Y2K") problem is the result of computer programs being
written using two digits, rather than four, to define the applicable year. Any
of DCAP's programs that have time- sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000, which could result in
miscalculations or system failures. DCAP has implemented a Y2K compliance
program designed to insure that its computer systems, applications and embedded
operating systems will function properly beyond 1999. DCAP believes that all of
its "mission critical" systems have been identified, and will be brought into
compliance in a timely fashion.
There are only two information technology ("IT") systems that require
Y2K analysis. One of these is in DCAP's headquarters and is already Y2K
compliant. The second is the storefront point of sale system, to which each DCAP
store is connected; currently, this system is not compliant. DCAP believes that
this second IT system will be fully compliant by the end of the first quarter of
1999.
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The remediation of the storefront computer system will be accomplished
by the installation of an entirely new system of leased computers The lease
agreement obligates DCAP to make payments totaling $92,000. It is anticipated
that this cost will be expensed as incurred and funded through cash from
operations. The programs that have been installed in these computers have been
tested by an independent third party with whom DCAP has had a maintenance
contract for the past four years. The testing of the storefront computer system,
which has occurred prior to installation, has been completed. Other than the
testing of the new storefront computer system, DCAP does not anticipate any
independent verification of its Year 2000 readiness.
The only material non-IT system which might be impacted by the Y2K
problem is DCAP's telephone system. DCAP has been assured by the manufacturer of
the system that it has addressed its Y2K problems, and that it is prepared to
upgrade the DCAP phone system, at a cost of $5,000, in order to make the system
Y2K compliant. DCAP management has not yet determined whether to upgrade its
phone system through an agreement with the manufacturer, or otherwise, but it
anticipates that this single non-IT Y2K issue will be fully remediated by the
end of the second quarter of 1999. An inventory and assessment of other
potential non-IT systems, which could have an impact on DCAP's business,
operations, and financial position, has been completed by the management of
DCAP. It was determined that no other non-IT systems will pose any Y2K problem.
DCAP's executive management has been contacted by all of the major
insurance carriers with which it does a significant amount of business. Most of
these major carriers, such as Chubb and Travelers, have notified DCAP that their
Y2K compliance programs are at or near completion, and DCAP therefore
anticipates no Year 2000 problems with these parties. The object of the contacts
by these companies was to insure that DCAP itself would be Y2K compliant, in
order to ensure the orderly continuation of business with them. DCAP anticipates
receiving similar communications from all of the major carriers with which it
deals by the end of the first quarter of 1999. However, neither the Company nor
the management of DCAP can assure that the systems of these insurance carriers,
upon which the business of the DCAP Companies depends, will be Y2K compliant on
a timely basis. DCAP is developing contingency plans designed to enable it to
continue its operations, even in the event of the loss of business from one or
more of these carriers, or due to other third party failures.
DCAP's management intends to develop a "worst-case scenario" with
respect to Y2K non-compliance and to develop contingency plans designed to
minimize the effects of such scenario. Both the worst-case scenario and the
contingency plan will involve analysis of (i) the use of alternative sources of
insurance coverage (of which DCAP has several) in the event of the loss of
availability of one or more major carriers, and (ii) the use of alternative,
non-IT methods of processing applications, including manual processing, in the
event of IT-system failure on the part of outside parties. The executive
management of DCAP intends to have its worst-case scenario and contingency plan
fully developed and completely in place by the end of the second quarter of
1999.
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Recommendation and Required Vote
The affirmative vote of the holders of a majority of the outstanding
Common Shares of the Company present at the Meeting in person or by Proxy is
required for approval of this proposal. The Board of Directors recommends a vote
FOR approval of the DCAP Acquisition.
PROPOSAL 3: AMENDMENT TO CERTIFICATE OF INCORPORATION
TO CHANGE NAME
The Company's Board of Directors has determined that, subject to
obtaining stockholder approval of the DCAP Acquisition, it would be in the best
interest of the Company and its stockholders to amend the Company's Certificate
of Incorporation to change the Company's name to "DCAP Group, Inc.". The Board
of Directors believes that the proposed new name is more identifiable with the
business activities of the DCAP Companies (which will be the Company's primary
business following the closing of the DCAP Agreement) and that, accordingly, its
adoption will enhance the Company's competitive position in its new business.
The amendment to the Certificate of Incorporation to change the Company's name
will not be effected if stockholder approval of the DCAP Acquisition is not
obtained.
Recommendation and Required Vote
The affirmative vote of the holders of a majority of the outstanding
Common Shares of the Company is required for approval of this proposal. The
Board of Directors recommends a vote FOR the adoption of the proposed amendment
to the Certificate of Incorporation.
PROPOSAL 4: AMENDMENT TO CERTIFICATE OF INCORPORATION
TO INCREASE NUMBER OF AUTHORIZED COMMON SHARES
The Board of Directors of the Company, by unanimous vote, has adopted
resolutions approving and submitting to a vote of the stockholders an amendment
to Article 4 of the Company's Certificate of Incorporation to increase the
number of authorized Common Shares from 10,000,000 to 25,000,000 (the
"Authorized Share Increase"). As discussed below, stockholder approval of the
Authorized Share Increase is a condition precedent to the closing of the DCAP
Agreement and the Eagle Subscription Agreement. The amendment to the Certificate
of Incorporation to increase the number of authorized Common Shares will not be
effected if stockholder approval of the DCAP Acquisition is not obtained. The
Board believes that the Authorized Share Increase is also in the best interest
of the Company so as to make additional Common Shares available for
acquisitions, financings, present and future employee benefit programs and other
corporate purposes.
As indicated above, the Company is currently authorized to issue
10,000,000 Common Shares. As of February 2, 1999, there were 5,591,367 Common
Shares issued and outstanding. Since the consummation of the DCAP Acquisition
requires the issuance of an aggregate of 4,702,000 Common Shares, there is
currently an insufficient number of authorized but unissued Common
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Shares available for such issuances. In addition, the DCAP Agreement
contemplates the grant of options to purchase an aggregate of 850,000 Common
Shares and the reservation of such Common Shares for such purposes. Further, the
Eagle Subscription Agreement contemplates the issuance of 1,486,893 Common
Shares. Accordingly, without an increase in the number of authorized Common
Shares, the Company will not be able to consummate the DCAP Acquisition or the
Eagle Subscription Agreement.
In addition, in January 1999, the Company entered into a letter of
intent with a placement agent with respect to a "best efforts" private placement
of between $1,500,000 and $2,000,000 in equity securities. The letter of intent
provides that Common Shares of the Company are to be offered at a subscription
price equal to two-thirds of the 30 day average of the closing price of the
Company's Common Shares on the Bulletin Board immediately prior to the
commencement of the offering (such 30 day average being referred to as "Market
Value"). For each three Common Shares purchased, a subscriber is also to receive
a Class A Warrant, Class B Warrant and Class C Warrant. Each warrant would
entitle the holder to purchase one Common Share at an exercise price equal to
100%, 125% and 150%, respectively, of Market Value during a five year term,
subject to redemption by the Company in the event the market price of the
Company's Common Shares is at least 25% greater than the exercise price of the
respective warrant and a registration statement is in effect covering the resale
of the Common Shares underlying the warrant.
The letter of intent also provides that, in the event, at the time the
Common Shares are saleable pursuant to Rule 144 or a registration statement
covering the shares becomes effective, the market price of the Common Shares is
less than the market price at the time of the offering, the private placement
purchasers shall be entitled to receive additional shares based upon the lower
price (but in no event more than an additional 50% of the original shares
issued). In addition, pursuant to the letter of intent, the respective exercise
prices of the warrants shall be likewise reduced (but not by more than
one-third).
Pursuant to the letter of intent, the placement agent is to receive a
commission equal to 10% of the proceeds of the offering, an accountable expense
allowance (not to exceed $35,000) and warrants to purchase up to 10% of the
securities sold in the offering. The letter of intent also provides for a
two-year corporate finance agreement between the Company and the placement agent
pursuant to which the placement agent would be entitled to receive a fee of
$25,000 per annum, payable upon execution of the agreement.
The additional Common Shares resulting from the stockholder approval of
the Authorized Share Increase may be issued from time to time as the Board of
Directors may determine without further action of the stockholders of the
Company. Although the Board has no current plans to utilize such shares to
entrench present management (however, see "Proposal 2: The DCAP Acquisition -
The DCAP Agreement - Agreement as to Voting"), it may, in the future, be able to
use the additional Common Shares as a defensive tactic against hostile takeover
attempts. The authorization of such additional Common Shares will have no
current anti-takeover effect, except that, following the closing of the DCAP
Agreement and the Eagle Subscription Agreement, Messrs.
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Certilman, Haft, Lang, Weinzimer and Wallach will beneficially own approximately
82.6% of the issued and outstanding Common Shares of the Company. See "Proposal
2: The DCAP Acquisition Stock Ownership Following the DCAP Acquisition and Eagle
Issuance." No hostile takeover attempts are, to management's knowledge,
currently threatened. Except as noted above or as discussed below under
"Proposal 5: Amendment to Certificate of Incorporation to Require Unanimous,
Rather Than Majority, Written Consent of Stockholders In Lieu of a Meeting Under
Certain Circumstances," there are no provisions in the Company's Certificate of
Incorporation or ByLaws or other material agreements to which the Company is a
party that would, in management's judgment, have an anti-takeover effect.
The relative rights and limitations of the Common Shares would remain
unchanged under the amendment. Stockholders of the Company do not currently
possess, nor upon the approval of the proposed Authorized Share Increase will
they acquire, preemptive rights, that would entitle such persons, as a matter of
right, to subscribe for the purchase of any shares, rights, warrants or other
securities or obligations convertible into, or exchangeable for, securities of
the Company.
Recommendation and Required Vote
The affirmative vote of the holders of a majority of the outstanding
Common Shares of the Company is required for approval of this proposal. The
Board of Directors recommends a vote FOR approval of the proposed amendment to
the Certificate of Incorporation.
PROPOSAL 5: AMENDMENT TO CERTIFICATE OF INCORPORATION TO
REQUIRE UNANIMOUS, RATHER THAN MAJORITY, WRITTEN CONSENT OF
STOCKHOLDERS IN LIEU OF A MEETING UNDER CERTAIN CIRCUMSTANCES
The Board of Directors of the Company, by unanimous vote, has adopted
resolutions approving and submitting to a vote of the stockholders an amendment
to the Company's Certificate of Incorporation pursuant to which if action is to
be taken by the stockholders of the Company without a meeting, then the written
consent of the holders of all of the shares of capital stock of the Company
entitled to vote on such action will be required. However, if the action has
been authorized by the Board of Directors, then the action may be taken by the
written consent of the holders of not less than a majority of the shares of
capital stock entitled to vote on such action.
This amendment, if adopted, would have the effect of narrowing the
provisions of Section 228 of the Delaware General Corporation Law ("Section
228"). Section 228 permits the taking of action by stockholders without a
meeting if, among other things, a written consent or consents to the action are
signed by stockholders holding the minimum number of shares that would be
necessary to authorize the action at an actual meeting at which all shares
entitled to vote on the matter were present and voted. The proposed amendment to
the Company's Certificate of Incorporation would require the written consent of
all of the stockholders, unless the action has been authorized by the Board of
Directors.
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The purpose of the provision is to require, in practical effect, that
stockholder proposals that are not authorized by the Board of Directors be
approved only following the opportunity for a full discussion of the matter at a
meeting of stockholders. The proposal is also intended to reduce the
vulnerability of the Company to takeovers by other corporations, groups, or
individuals, which in the judgment of the Board of Directors may not be in the
best interest of the stockholders. Persons seeking control in a hostile takeover
attempt would be deterred since, following their acquisition of such control,
they would not be in a position to remove the then incumbent directors of the
Company until the next annual meeting of stockholders. Management is not
presently aware of any threat of a tender offer or other means of acquiring
control of the Company. Stockholder approval of this proposal is a condition to
the obligation of EXTECH and Messrs. Certilman and Haft to close the DCAP
Agreement.
Although the objectives of the proposed amendment are desirable,
stockholders should note that there are certain disadvantages stemming from it.
One disadvantage is that the provision could have the effect of deterring a
future takeover attempt which a majority of the stockholders may deem to be in
their best interests or where the stockholders may receive a substantial premium
for their shares over market value. The provision may also make it less likely
that incumbent management will be replaced even though a majority of the
stockholders may deem it desirable. Also, the provision might tend to encourage
persons seeking control of the Company to negotiate terms of the proposed
acquisition with the Company's Board of Directors which may impose an
unavoidable conflict of interest for some members of the Board of Directors. For
example, they may be confronted with the prospect of losing their positions on
the Board of Directors or as officers of the Company if the transaction is
consummated, yet the terms of the proposed transaction may be favorable to
stockholders. Additionally, a determined tender offeror may elect to proceed
with his offer, but the price offered to stockholders may be lower than would be
the case if the proposed provision was not in effect.
Recommendation and Required Vote
The affirmative vote of the holders of a majority of the outstanding
Common Shares of the Company is required for approval of this proposal. The
Board of Directors recommends a vote FOR approval of the proposed amendment to
the Certificate of Incorporation.
PROPOSAL 6: THE 1998 STOCK OPTION PLAN
The Company's Board of Directors has adopted the 1998 Stock Option Plan
(subject to stockholder approval thereof as well as of the Authorized Share
Increase) (the "1998 Plan") and has reserved for issuance thereunder 2,000,000
Common Shares of the Company. The following statements include summaries of
certain provisions of the 1998 Plan. The statements do not purport to be
complete and are qualified in their entirety by reference to the provisions of
the 1998 Plan, a copy of which is available at the offices of the Company.
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Purpose
The purpose of the 1998 Plan is to advance the interests of the Company
by inducing persons or entities of outstanding ability and potential to join and
remain with, or provide consulting or advisory services to, the Company, by
encouraging and enabling eligible employees, non-employee directors, consultants
and advisors to acquire proprietary interests in the Company, and by providing
such employees, non-employee directors, consultants and advisors with an
additional incentive to promote the success of the Company.
Administration
The 1998 Plan provides for its administration by the Board or by a
committee (the "Stock Option Committee") consisting of at least one person
chosen by the Board of Directors (which number is contemplated to be increased
to four at the closing of the DCAP Agreement). The Board or the Stock Option
Committee has authority (subject to certain restrictions) to select from the
group of eligible employees, non-employee directors, consultants and advisors
the individuals or entities to whom options will be granted, and to determine
the times at which and the exercise price for which options will be granted. The
Board or the Stock Option Committee is authorized to interpret the 1998 Plan and
the interpretation and construction by the Board or the Stock Option Committee
of any provision of the 1998 Plan or of any option granted thereunder shall be
final and conclusive. The receipt of options by directors or any members of the
Stock Option Committee shall not preclude their vote on any matters in
connection with the administration or interpretation of the 1998 Plan.
Nature of Options
The Board or Stock Option Committee may grant options under the 1998
Plan which are intended to either qualify as "incentive stock options" within
the meaning of Section 422 of the Code ("Incentive Stock Options"), or not so
qualify ("Nonstatutory Stock Options"). The Federal income tax consequences
relating to the grant and exercise of Incentive Stock Options and Nonstatutory
Stock Options are described below under "Federal Income Tax Consequences."
Eligibility
Subject to certain limitations as set forth in the 1998 Plan, options
to purchase shares may be granted thereunder to persons or entities who, in the
case of Incentive Stock Options, are employees (including directors and
officers) of either the Company or its subsidiaries or, in the case of
Nonstatutory Stock Options, are employees (including directors and officers) or
non-employee directors of, or certain consultants or advisors to, the Company or
its subsidiaries. At December 31, 1998, approximately 18 employees and one
non-employee director were eligible to receive options under the 1998 Plan.
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Option Price
The option price of the shares subject to an Incentive Stock Option may
not be less than the fair market value (as such term is defined in the 1998
Plan) of the Common Shares on the date upon which such option is granted. In
addition, in the case of a recipient of an Incentive Stock Option who, at the
time the option is granted, owns more than 10% of the total combined voting
power of all classes of stock of the Company or of a parent or subsidiary
corporation of the Company (a "10% Stockholder"), the option price of the shares
subject to such option must be at least 110% of the fair market value of the
Common Shares on the date upon which such option is granted.
The option price of shares subject to a Nonstatutory Stock Option will
be determined by the Board of Directors or the Stock Option Committee at the
time of grant and need not be equal to or greater than the fair market value for
the Company's Common Shares.
On February __, 1999, the closing bid price for the Company's Common
Shares, as reported by the Bulletin Board, was $____ per share.
Exercise of Options
An option granted under the 1998 Plan shall be exercised by the
delivery by the holder thereof to the Company at its principal office (attention
of the Secretary) of written notice of the number of shares with respect to
which the option is being exercised. Such notice shall be accompanied , or
followed within ten days, by payment of the full option price of such shares
which shall be made by the holder's delivery of (i) a check payable to the order
of the Company in such amount or (ii) previously acquired Common Shares, the
fair market value of which shall be determined as of the date of exercise, or a
combination of (i) and (ii).
Duration of Options
No Incentive Stock Option granted under the 1998 Plan shall be
exercisable after the expiration of ten years from the date of its grant.
However, if an Incentive Stock Option is granted to a 10% Stockholder, such
option shall not be exercisable after the expiration of five years from the date
of its grant.
Nonstatutory Stock Options granted under the 1998 Plan may be of such
duration as shall be determined by the Board or the Stock Option Committee.
Non-Transferability
Options granted under the 1998 Plan are not transferable otherwise than
by will or the laws of descent and distribution and such options are
exercisable, during a holder's lifetime, only by the optionee.
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Death, Disability or Termination of Employment
Subject to the terms of the stock option agreement pursuant to which
options are granted, if the employment of an employee or the services of a
non-employee director, consultant or advisor shall be terminated for cause, or
such employment or services shall be terminated voluntarily, any options held by
such persons or entities shall expire immediately. If such employment or
services shall terminate other than by reason of death or disability,
voluntarily by the employee, non-employee director, consultant or advisor or for
cause, then, subject to the terms of the stock option agreement pursuant to
which options are granted, such option may be exercised at any time within three
months after such termination, but in no event after the expiration of the
option. For purposes of the 1998 Plan, the retirement of an individual either
pursuant to a pension or retirement plan adopted by the Company or at the normal
retirement date prescribed from time to time by the Company is deemed to be a
termination of such individual's employment other than voluntarily by the
employee or for cause.
Subject to the terms of the stock option agreement pursuant to which
options are granted, if an option holder under the 1998 Plan (i) dies while
employed by the Company or its subsidiary or while serving as a non-employee
director of, or consultant or advisor to, the Company or its subsidiary, or (ii)
dies within three months after the termination of his employment or services
other than voluntarily or for cause, then such option may be exercised by the
estate of the employee, non-employee director, consultant or advisor, or by a
person who acquired such option by bequest or inheritance from the deceased
option holder, at any time within one year after his death. Subject to the terms
of the stock option agreement pursuant to which options are granted, if the
holder of an option under the 1998 Plan ceases employment or services because of
permanent and total disability (within the meaning of Section 22(e)(3) of the
Code) while employed by, or while serving as a non-employee director of, or
consultant or advisor to, the Company or its subsidiary, then such option may be
exercised at any time within one year after his termination of employment,
termination of directorship, or termination of consulting or advisory
arrangement or agreement due to the disability.
Amendment and Termination
The 1998 Plan (but not options previously granted thereunder) shall
terminate on November 2, 2008, ten years from the date that it was adopted by
the Board. Subject to certain limitations, the 1998 Plan may be amended or
modified from time to time or terminated at an earlier date by the Board or by
the stockholders.
Federal Income Tax Consequences
Nonstatutory Stock Options
Under the Code and the Treasury Department Regulations (the
"Regulations"), a Nonstatutory Stock Option does not ordinarily have a "readily
ascertainable fair market value" when it is granted. This rule will apply to the
Company's grant of Nonstatutory Stock Options. Consequently, the grant of a
Nonstatutory Stock Option to an optionee will result in neither income
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to him nor a deduction to the Company. Instead, the optionee will recognize
compensation income at the time he exercises the Nonstatutory Stock Option in an
amount equal to the excess, if any, of the then fair market value of the shares
transferred to him over the option price. Subject to the applicable provisions
of the Code and the Regulations regarding withholding of tax, a deduction will
be allowable to the Company in the year of exercise in the same amount as is
includable in the optionee's income.
For purposes of determining the optionee's gain or loss on the sale or
other disposition of the shares transferred to him upon exercise of a
Nonstatutory Stock Option, the optionee's basis in such shares will be the sum
of his option price plus the amount of compensation income recognized by him on
exercise. Such gain or loss will be capital gain or loss and will be long-term
or short-term depending upon whether the optionee held the shares for more than
one year or one year or less. No part of any such gain will be an "item of tax
preference" for purposes of the "alternative minimum tax."
Incentive Stock Options
Options granted under the 1998 Plan which qualify as Incentive Stock
Options under Section 422 of the Code will be treated as follows:
Except to the extent that the alternative minimum tax rule described
below applies, no tax consequences will result to the optionee or the Company
from the grant of an Incentive Stock Option to, or the exercise of an Incentive
Stock Option by, the optionee. Instead, the optionee will recognize gain or loss
when he sells or disposes of the shares transferred to him upon exercise of the
Incentive Stock Option. For purposes of determining such gain or loss, the
optionee's basis in such shares will be his option price. If the date of sale or
disposition of such shares is at least two years after the date of the grant of
the Incentive Stock Option, and at least one year after the transfer of the
shares to him upon exercise of the Incentive Stock Option, the optionee will
realize long-term capital gain treatment upon their sale or disposition.
The Company generally will not be allowed a deduction with respect to
an Incentive Stock Option. However, if an optionee fails to meet the foregoing
holding period requirements (a so-called disqualifying disposition), any gain
recognized by the optionee upon the sale or disposition of the shares
transferred to him upon exercise of an Incentive Stock Option will be treated in
the year of such sale or disposition as ordinary income, rather than capital
gain, to the extent of the excess, if any, of the fair market value of the
shares at the time of exercise (or, if less, in certain cases the amount
realized on such sale or disposition) over their option price, and in that case
the Company will be allowed a corresponding deduction.
For purposes of the alternative minimum tax, the amount, if any, by
which the fair market value of the shares transferred to the optionee upon such
exercise exceeds the option price will be included in determining the optionee's
alternative minimum taxable income. In addition, for purposes of such tax, the
basis of such shares will include such excess.
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To the extent that the aggregate fair market value (determined at the
time the option is granted) of the stock with respect to which Incentive Stock
Options are exercisable for the first time by the optionee during any calendar
year exceeds $100,000, such options will not be Incentive Stock Options. In this
regard, upon the exercise of an option which is deemed, under the rule described
in the preceding sentence, to be in part an Incentive Stock Option and in part a
Nonstatutory Stock Option, under existing Internal Revenue Service guidelines,
the Company may designate which shares issued upon exercise of such options are
Incentive Stock Options and which shares are Non-statutory Stock Options. In the
absence of such designation, a pro rata portion of each share issued is to be
treated as issued pursuant to the exercise of an Incentive Stock Option and the
balance of each share treated as issued pursuant to the exercise of a Non-
statutory Stock Option.
Options to be Granted
Pursuant to the DCAP Agreement, it is contemplated that, at the closing
thereof, Messrs. Certilman, Haft, Lang and Weinzimer will be granted options
under the 1998 Plan to purchase the following number of Common Shares:
Certilman................225,000
Haft.....................225,000
Lang.....................200,000
Weinzimer................200,000
The options are to have the following terms: (i) an expiration date
five years from the date of grant; (ii) an exercise price equal to 110% of the
fair market value of the Common Shares on the date of the grant; and (iii)
vesting to the extent of one-half thereof on each of the first and second
anniversaries of the date of grant. See "Proposal 2: The DCAP Acquisition - The
DCAP Agreement - Employment Agreements; and - Conditions to Closing."
Recommendation and Required Vote
The affirmative vote of the holders of a majority of the outstanding
Common Shares of the Company present at the Meeting in person or by Proxy is
required for approval of this proposal. The Board of Directors recommends a vote
FOR ratification of the adoption of the 1998 Stock Option Plan.
INDEPENDENT PUBLIC ACCOUNTANTS
Holtz Rubenstein & Co., LLP has served as auditors for the Company since
1990 and has been selected as the Company's independent public accountants with
respect to the fiscal year ending December 31, 1998.
A representative of Holtz Rubenstein & Co., LLP is not expected to
attend the Meeting.
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STOCKHOLDER PROPOSALS
Stockholder proposals intended to be presented at the Company's 1999
Annual Meeting of Stockholders pursuant to the provisions of Rule 14a-8 of the
Securities and Exchange Commission, promulgated under the Exchange Act, must be
received at the Company's offices in East Meadow, New York by ___________, 1999
for inclusion in the Company's Proxy Statement and form of Proxy relating to
such meeting. The Company, however, intends to hold next year's annual meeting
earlier in the year than this year's meeting. Accordingly, the Company suggests
that stockholder proposals intended to be presented at next year's annual
meeting be submitted well in advance of April 15, 1999, the earliest date upon
which the Company anticipates the proxy statement and form of proxy relating to
such meeting will be released to stockholders.
In order for a stockholder to nominate a candidate for director, under
the Company's ByLaws, timely notice of the nomination must be received by the
Company in advance of the meeting. Ordinarily, such notice must be received at
the principal executive offices of the Company (as provided below) not less than
60 days nor more than 90 days prior to the meeting; however, in the event that
less than 70 days' notice of the date of the meeting is given to stockholders
and public disclosure of the meeting date, pursuant to a press release, is
either not made at all or is made less than 70 days prior to the meeting date,
notice by such stockholder to be timely made must be so received no later than
the close of business on the tenth day following the earlier of (i) the day on
which the notice of the date of the meeting was mailed to stockholders, or (ii)
the day on which such public disclosure of the meeting date was made. The
stockholder filing the notice of nomination must describe various matters,
including such information as (a) the name, age, business and residence
addresses, occupation or employment and shares held by the nominee; (b) any
other information relating to such nominee required to be disclosed in a Proxy
Statement; and (c) the name, address and shares held by the stockholder.
In order for a stockholder to bring other business before an annual
meeting of stockholders, under the Company's By-Laws, timely notice must be
received by the Company within the time limits described above. A stockholder's
notice must set forth as to each matter the stockholder proposes to bring before
the annual meeting certain information regarding the proposal, including (a) a
brief description of the business desired to be brought before the meeting and
the reasons for conducting such business at such meeting; (b) the name and
address of such stockholder proposing such business; (c) the class and number of
shares of the Company which are beneficially owned by such stockholder; and (d)
any material interest of such stockholder in such business. These requirements
are separate from and in addition to the requirements a stockholder must meet to
have a proposal included in the Company's Proxy Statement.
Any notice given pursuant to the foregoing requirements must be sent to
the Secretary of the Company at The Financial Center at Mitchel Field, 90
Merrick Avenue, 9th Floor, East Meadow, New York 11554. The foregoing is only a
summary of the provisions of the Company's ByLaws that relate to stockholder
nominations for director and stockholder proposals. Any
79
<PAGE>
shareholder desiring a copy of the Company's By-Laws will be furnished one
without charge upon receipt of a written request therefor.
OTHER BUSINESS
While the accompanying Notice of Annual Meeting of Stockholders provides
for the transaction of such other business as may properly come before the
Meeting, the Company has no knowledge of any matters to be presented at the
Meeting other than those listed as Proposals 1 through 6 in the notice. However,
the enclosed Proxy gives discretionary authority in the event that any other
matters should be presented.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Proxy Statement is accompanied by a copy of the Company's 1997 Form
10-KSB and September 30, 1998 Form 10-QSB.
The following information from the Company's 1997 Form 10-KSB (File No.
0-1665), as filed with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act, is hereby incorporated by reference into this Proxy Statement:
(i) "Description of Business," included in Item 1 thereof;
(ii) "Description of Property," included in Item 2 thereof;
(iii) "Legal Proceedings," included in item 3 thereof;
(iv) "Management's Discussion and Analysis or Plan of Operation,"
included in Item 6 thereof;
(v) the consolidated financial statements of the Company as of
December 31, 1997 and for the years ended December 31, 1996
and 1997, included in Item 7 thereof; and
(vi) "Changes in and Disagreements with Accountants," included in
Item 8 thereof.
The following additional information from the Company's September 30,
1998 Form 10-QSB (File No. 0-1665), as filed with the SEC pursuant to Section 13
or 15(d) of the Exchange Act, is hereby incorporated by reference into this
Proxy Statement:
(i) the consolidated financial statements of the Company as of
September 30, 1998 and for the nine months ended September 30,
1997 and 1998, included in Item 1 of Part I thereof; and
80
<PAGE>
(ii) "Management's Discussion and Analysis or Plan of Operation,"
included in Item 2 of Part I thereof.
Any statement contained in a document incorporated herein by reference
shall be deemed to be modified or superseded for purposes of this Proxy
Statement to the extent that a statement contained herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Proxy
Statement.
Morton L. Certilman
President
East Meadow, New York
February __, 1999
81
<PAGE>
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
Dealers Choice Automotive Planning, Inc.
and Affiliated Companies
East Meadow, New York
We have audited the accompanying Combined Balance Sheets of Dealers
Choice Automotive Planning, Inc. and Affiliated Companies as of December 31,
1997 and 1996 and the related Combined Statements of Operations and
Stockholder's Equity for the years then ended, and the Statement of Cash Flows
for the year ended 1997. These financial statements are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We have conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and perform the audits
to obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant estimates
made by management, as well as evaluating the overall financial statement
presentation. We believe that our audits provides a reasonable basis for our
opinion.
The Company has presented an unaudited Statement of Cash Flows for the
year ended December 31, 1996. Presentation of an audited statement summarizing
the Company's operating, investing and financing activities is required by
generally accepted accounting policies.
In our opinion, except that the omission of an audited statement of
cash flows results in an incomplete presentation as explained in the preceding
paragraph, the financial statements referred to above present fairly, in all
material respects, the financial position of Dealers Choice Automotive Planning,
Inc. and Affiliated Companies as of December 31, 1997 and 1996 and the results
of its operations for the years 1997 and 1996 and its statement of cash flows
for the year ended 1997 in conformity with generally accepted accounting
principles.
F-1
<PAGE>
The financial statements referred to above have been prepared assuming
that the Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has suffered losses, has a capital deficit and
has negative working capital. These conditions raise substantial doubt as to the
Company's ability to continue as a going concern. While the Company plans to
raise additional capital, there can be no assurance that such efforts will be
successful. The financial statements do not include any adjustments that might
result from the outcome of this uncertainty.
Deutsch, Marin & Company, LLP
Uniondale, New York
January 20, 1999
F-2
<PAGE>
<TABLE>
<CAPTION>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
COMBINED BALANCE SHEETS
AS AT DECEMBER 31,
1997 1996
---------- ----------
ASSETS
Current Assets
<S> <C> <C>
Accounts receivable (Note 1) $ 548,061 $ 497,078
Prepaid expenses and other current assets 61,239 54,228
---------- ----------
Total Current Assets 609,300 551,306
--------------------
Fixed assets (Notes 1,2) 1,130,696 1,259,115
Due from related companies (Note 3) 76,455 43,533
Loan receivable - shareholders 352,346 202,195
Loan receivable - minority shareholders (Note 3) 47,500 45,000
Deferred taxes (Note 1) 92,500 82,800
Deposits and other assets 64,012 55,883
---------- ----------
$2,372,809 $2,239,832
========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Current portion of long-term debt (Note 4) $ 158,044 $ 120,103
Notes payable - EXTECH Corporation (Note 5) 325,000 -
Notes payable - other (Note 6) 230,583 169,173
Cash overdraft 2,204 70,252
Accounts payable and accrued expenses 587,215 644,357
Premiums payable 22,309 139,794
Income taxes payable (Note 9) 37,109 47,121
---------- ----------
Total Current Liabilities 1,362,464 1,190,800
-------------------------
Long-term debt (Note 4) 249,273 415,119
Loans payable - minority shareholders (Note 3) 79,800 74,800
Deferred revenue 437,176 473,826
Deferred income taxes (Note 1) 49,800 44,100
Commitments and contingencies (Note 10) - -
Minority interest in affiliated companies (Note 7) 1,269,857 1,111,236
Shareholders' Equity (Deficit) (Note 11) (1,075,561) (1,070,049)
- ------------------------------ --------- ---------
$2,372,809 $2,239,832
========== ==========
</TABLE>
The accompanying notes are an integral part of these combined statements
F-3
<PAGE>
<TABLE>
<CAPTION>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
COMBINED STATEMENTS OF OPERATIONS
FOR THE CALENDAR YEARS
1997 1996
---------- ----------
<S> <C> <C>
Revenue
From - commissions $4,966,158 $5,029,981
- fees and other 3,520,382 4,307,974
---------- ----------
Total Revenue 8,486,540 9,337,955
-------------
Operating Expenses
Selling 2,649,304 2,956,284
General and administrative 6,050,690 6,655,178
Depreciation and amortization 207,721 204,471
---------- ----------
Total Operating Expenses 8,907,715 9,815,933
------------------------ ---------- ----------
Net Operating (Loss) for Year Before
Other Income/Expense ( 421,175) ( 477,978)
- ------------------------------------
Sale of book of business (Note 8) 535,334 -
Interest expense 52,269 84,371
---------- ----------
Net Income/(Loss) for Year Before
Provision for Income Taxes 61,890 ( 562,349)
- ---------------------------------
Provision for income taxes (Note 9) 43,988 52,478
---------- ----------
Net Income/(Loss) for Year Before
Minority Interest 17,902 ( 614,827)
- ---------------------------------
Minority interest in affiliated companies ( 41,192) ( 261,232)
--------- ----------
Net Income/(Loss) for Year $ 59,094 ($ 353,595)
- -------------------------- ========== ==========
</TABLE>
The accompanying notes are an integral part of these combined statements
F-4
<PAGE>
<TABLE>
<CAPTION>
DEALERS CHOICE
AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
COMBINED STATEMENTS OF SHAREHOLDERS' DEFICIT
FOR THE CALENDAR YEARS 1997 AND 1996
Common Paid in Accumulated Treasury
Stock Capital Deficit Stock Total
----- ------- ------- ----- -----
<S> <C> <C> <C> <C> <C>
Balance - January 1, 1996 $25,617 $135,703 ($1,015,920) $ - ($ 854,600)
Issuance of stock 8,300 190,496 - - 198,796
Redemption of stock ( 500) - 2,050 ( 47,000) ( 45,450)
Net loss for year - - ( 353,595) - ( 353,595)
Dividends - - ( 15,200) - ( 15,200)
------- -------- -------- ------- ---------
Balance - December 31, 1996 33,417 326,199 (1,382,665) ( 47,000) (1,070,049)
Issuance of stock 666 - - - 666
Redemption of stock ( 1,500) - - ( 48,572) ( 50,072)
Net income for year - - 59,094 - 59,094
Dividends - - ( 15,200) - ( 15,200)
------- -------- -------- ------- ---------
Balance - December 31, 1997 $32,583 $326,199 ($1,338,771) ($95,572) $(1,075,561)
======= ======== ========== ======= ==========
</TABLE>
The accompanying notes are an integral part of these combined statements
F-5
<PAGE>
<TABLE>
<CAPTION>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
COMBINED STATEMENT OF CASH FLOWS
FOR THE CALENDAR YEARS
1997 1996
(Audited) (Unaudited)
Cash Flows from Operating Activities:
<S> <C> <C>
Net income (loss) for year $ 59,094 ($353,595)
Adjustments to reconcile net income (loss)
to net cash provided by (used in)
operating activities:
Depreciation and amortization 207,721 204,471
Deferred taxes ( 11,738) ( 82,800)
Changes in assets and liabilities:
Accounts receivable ( 50,983) ( 130,004)
Prepaid expenses and other assets ( 7,011) 7,403
Deposits ( 9,700) -
Accounts payable and accrued expenses ( 57,142) 277,269
Premiums payable ( 117,485) 57,610
Deferred revenue and taxes ( 30,950) ( 13,785)
Income taxes payable ( 10,012) 6,113
-------- --------
Net cash (used in) operating activities ( 28,206) ( 27,318)
--------------------------------------- -------- --------
Cash Flows from Investing Activities:
(Redemption)/issuance of stock (net) ( 49,406) 153,346
Purchase of fixed assets ( 75,693) ( 177,449)
Dividends ( 15,200) ( 15,200)
Increase/(decrease) in minority interest in
affiliated companies 158,621 ( 276,232)
-------- --------
Net cash provided by/(used in)
investing activities 18,322 ( 315,535)
------------------------------ -------- --------
Cash Flows from Financing Activities:
(Increase)/Decrease due from related companies ( 32,922) 32,922
Decrease in loan receivable - shareholders ( 150,151) ( 217,116)
Increase in loan payable - minority
shareholders (net) 2,500 -
(Reduction)/increase of long-term debt ( 127,905) 85,691
Increase in notes payable 386,410 169,173
-------- --------
Net cash provided by financing activities 77,932 70,670
----------------------------------------- -------- --------
Net Changes in Cash Equivalents 68,048 ( 272,183)
- -------------------------------
Cash overdraft - January 1, ( 70,252) 201,931
-------- --------
Cash overdraft - December 31, ($ 2,204) ($ 70,252)
======== ========
Supplemental Disclosure of Cash Flow Information
Cash paid during the year For:
Interest $39,984 $ 21,627
======== ==========
Taxes $48,735 $ 14,611
======== ==========
</TABLE>
The accompanying notes are an integral part of these combined statements
F-6
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 1: - Business Activities and Significant Accounting Policies
Business Activities - Dealers Choice Automotive Planning, Inc.
(the Company), principally operates as a network of retail
offices, engaged in the sale of retail auto, motorcycle, boat,
life, business and homeowner's insurance, income tax
preparation, and automobile club in the New York metropolitan
area.
Going Concern - The Company's financial statements have been
prepared assuming that the Company will continue as a going
concern. The Company has suffered losses for a number of
years, and has negative working capital. The Company has
relied on loans and the sale of its book of business to
supplement operating revenues and sustain its working capital
needs. Management believes that the additional cash infusion
from the proposed transactions with EXTECH Corporation (see
Notes 5 and 11) will be sufficient to meet its cash flow needs
for the coming year. However, there can be no assurance that
the transactions will be completed. The financial statements
do not include any adjustments that might result from the
outcome of this uncertainty.
Principles of Combination - The combined financial statements
include the accounts of the Company, DCAP Management Corp. the
franchisor of twenty-seven (27) DCAP locations), four (4)
corporations performing income tax, motor club, and premium
financial services, and thirty-two (32) affiliates. An
affiliated company is defined as an independent agency,
operating a retail office under the DCAP name, where the
shareholders of the Company own at least fifty (50%) percent
of the agency. All significant intercompany transactions and
balances have been eliminated in the combination.
Use of Estimates - The preparation of financial statements in
conformity with generally accepted accounting principles
requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues
and expenses during the reporting period. Actual results could
differ from those estimates.
Revenue Recognition - The Company recognizes commission
revenue from insurance policies at the beginning of the
contract period, on income tax preparation when the services
are completed, and on automobile club dues equally over the
contract period. Franchise fee revenue received by DCAP
Management Corp. is recognized at the time when it
substantially completes all of its contractual requirements
under the franchise agreement. Refunds of commissions on the
cancellation of insurance policies are reflected at the time
of cancellation and no reserves have been established since
the total is immaterial.
F-7
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 1: - Business Activities and Significant Accounting Policies
(Continued)
Accounts Receivable - A majority of the Company's receivables
are derived from commissions earned from insurance companies.
Concentration of credit risk with respect to its receivables
is considered to be limited due to its regulated customer
base. The Company's policy is not to establish an allowance
for doubtful accounts, but rather to write off bad debts
against earnings when an account is deemed uncollectible.
Fixed Assets and Depreciation - Property and equipment are
stated at cost and are depreciated over the useful life of the
assets on a straight line basis, starting with the date the
asset is placed in service.
The ranges of estimated useful lives used in computing
depreciation are as follows:
Computer hardware and software
and other office equipment 5 years
Transportation equipment 5 years
Office furniture and fixtures 7 years
Leasehold improvements 31.5 - 39 years
Property sold or retired is eliminated from the asset and
accumulated depreciation accounts in the year of disposition.
Any differences between proceeds on disposition and
undepreciated costs are reflected in other income.
Expenditures for ordinary maintenance repairs and minor
renewals which do not naturally extend the life of assets are
charged against earnings when incurred. Additions and major
renewals are capitalized.
Long-lived Assets - Statement of Financial Accounting
Standards No. 121, "Accounting for Impairment of Long-lived
Assets and for Long-lived Assets to be Disposed of" requires
that long-lived assets be reviewed for impairment whenever
events of changes in circumstances indicate that the carrying
amounts of the assets in question may not be recovered. This
standard, adopted in 1996, did not have a material effect on
the Company's result of operations, cash flows or financial
position.
F-8
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 1: - Business Activities and Significant Accounting Policies
(Continued)
Income Taxes - Deferred tax assets and liabilities are
recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts
of existing assets and liabilities and their respective tax
bases. Deferred tax assets and liabilities are measured using
enacted tax rates expected to apply to taxable income in the
years those temporary differences are expected to be recovered
or settled. Deferred tax assets are recognized for operating
losses that are anticipated to be utilized in the future.
Advertising Expense - Advertising costs are expensed as
incurred. The total expense for 1997 and 1996 approximated
$835,400 and $1,116,200, respectively.
Note 2: - Fixed Assets
The summary of fixed assets and accumulated depreciation is
stated at cost and is as follows:
December 31, 1997
Accumulated Net
Cost Depreciation Value
Office furniture and fixtures $ 786,845 $505,730 $ 281,115
Computer hardware and software
and other office equipment 534,794 260,100 274,694
Leasehold improvements 626,240 89,139 537,101
Transportation equipment 53,980 16,194 37,786
---------- -------- ----------
Total $2,001,859 $871,163 $1,130,696
========== ======== ==========
December 31, 1996
Accumulated Net
Cost Depreciation Value
Office furniture and fixtures $ 787,004 $467,620 $ 319,384
Computer hardware and software
and other office equipment 534,202 176,514 357,688
Leasehold improvements 625,671 92,210 533,461
Transportation equipment 53,980 5,398 48,582
---------- -------- ----------
Total $2,000,857 $741,742 $1,259,115
========== ======== ==========
Depreciation expense is $204,112 for calendar year 1997 and
$200,862 for calendar year 1996.
F-9
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 3: - Related Party Transactions
From time to time, the Company will make and/or receive
advances of working capital to/from related parties. The
working capital advances are usually for short durations,
without collateral and without interest. The Company allocates
a portion of its operating expenses to the related party,
based on management's estimate of expenses incurred.
The Company has also advanced/received funds to/from
stockholders of several of the affiliated companies. These
loans are non-interest bearing, without a fixed maturity.
Management has classified these loans as a noncurrent
asset/liability.
Note 4: - Long-term Debt
Long-term debt is comprised as follows:
1997 1996
-------- --------
Capitalized equipment leases, pay-
able in monthly installments
maturing at various dates $289,812 $367,726
Notes payable for acquisition of
transportation equipment, payable
in monthly installments, maturing
at various dates 36,054 46,263
Notes payable for purchase of
treasury stock, payable in
monthly installments, maturing
at various dates 81,451 45,833
Note payable - other - 75,400
-------- --------
407,317 535,222
Less: current maturities of
long-term debt 158,044 120,103
-------- --------
Total $249,273 $415,119
----- ======== =======
The capitalized lease obligations and notes payable are
collateralized by the related equipment.
F-10
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 4: - Long-term Debt (Continued)
Maturities of long-term debt, including capital leases, for
1998 to 2002 as of December 31, 1997 are as follows:
1998 $158,044
1999 141,960
2000 78,572
2001 19,056
2002 9,685
--------
$407,317
Note 5: - Notes Payable - EXTECH Corporation
On November 26, 1997 EXTECH Corporation loaned $325,000
evidenced by a promissory note, bearing interest at ten (10%)
percent and maturing on September 30, 1998. In addition in
March, 1998 and May, 1998 EXTECH Corporation also loaned the
Company $114,000 and $311,000 under the same terms and
conditions. Further, between November 1998 and January 1999,
EXTECH Corporation loaned the Company an additional $205,000
under the same terms and conditions. The notes are secured by
the pledge of the majority shareholders stock pursuant to
terms of a pledge agreement. Prior to September 30, 1998 the
maturity date of the notes was extended to December 31, 1998.
In January 1999, the maturity date of the notes was further
extended to February 28, 1999.
Note 6: - Notes Payable - Other
At December 31, 1997, the Company has a $250,000 line of
credit from Chase Manhattan Bank of which $195,195 was
outstanding. Advances under the line bear interest at one and
one half (1 1/2) percent above the prime rate. The loan is
collateralized with a security interest in all personal
property of the Company, including equipment, accounts
receivable and intangibles, and is personally guaranteed by
the shareholders of the Company.
At December 31, 1996, the Company had a $150,000 line of
credit from Fleet Bank, of which $169,173 was outstanding.
During 1997 the bank required that $133,785 be repaid, leaving
$35,388 outstanding as of December 31, 1997. Advances under
the line bear interest at two (2%) percent above the prime
rate.
F-11
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 7: - Minority Interest
The Company has expanded by opening new retail offices under
the DCAP name, with the shareholders of the Company owning no
less than fifty (50%) percent of the new business entity. The
minority stockholders are required to provide an initial
capital investment to be used for working capital, equipment,
and store improvements. Typically, profit and loss will be
shared proportionately.
The minority interest in affiliated companies consists of the
following:
1997 1996
----------- ----------
Common stock $ 14,217 $ 14,383
Additional paid-in capital 1,719,901 1,504,722
Retained earnings (deficit) ( 464,261) ( 407,869)
---------- ---------
Total $1,269,857 $1,111,236
----- ========== =========
Note 8: - Sale of Book of Business
During 1997, the Company sold the potential future commissions
on renewal policies on all Progressive Insurance Company
automobile policies sold prior to May 30, 1997 for
approximately $535,000. Commissions will be received for
policies sold after May 30, 1997, including future renewals.
Note 9: - Income Taxes
Seventeen (17) of the affiliates have elected Subchapter "S"
Corporation status, whereby both Federal and State income
taxes are paid at the shareholder level. In all instances, New
York City corporation tax, if applicable, is paid at the
corporate level. The provision for income taxes, which
includes all non- Subchapter "S" Corporations, as well as the
applicable City Corporation tax, consists of the following:
1997 1996
------- -------
Current - Federal $11,439 $24,812
- State and local 36,549 32,666
Tax benefit of net operating
loss carryforwards ( 4,000) ( 5,000)
------- -------
Total $43,988 $52,478
----- ======= =======
F-12
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 9: - Income Taxes (Continued)
The Company and its affiliates have approximately $1,016,000
net operating loss carryforwards available at December 31,
1997 to reduce future taxable income. These carryforwards
expire at various times and amounts through December 31, 2012.
Note 10: - Commitments and Contingencies
The Company and each of its affiliates lease office space in
different locations. These leases are for various terms and
expire at various dates. The future minimum lease payments
under these rental leases as of December 31, 1997 are as
follows:
1998 $ 724,045
1999 624,494
2000 526,465
2001 465,433
2002 386,824
2003-2007 715,204
---------
$3,442,465
==========
The Company and its affiliates lease office equipment under
various operating leases. The future minimum lease payments
under these equipment leases are as follows:
1998 $ 329,141
1999 302,271
2000 248,568
2001 67,939
2002 5,445
----------
$ 953,364
==========
Note 11: - Subsequent Events
On May 8, 1998, the principal shareholders of the Company
signed an agreement to exchange all their common stock of the
Company and its affiliated companies and a membership interest
in a certain limited liability company for 3,300,000 shares of
common stock of EXTECH Corporation, subject to a number of
conditions. The parties intend that this transaction satisfy
the provisions of Section 351 of the Internal Revenue Code. In
addition, as described in Note 5, EXTECH Corporation has
loaned the Company a total of seven hundred fifty thousand
dollars ($750,000).
F-13
<PAGE>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
NOTES TO FINANCIAL STATEMENTS
DECEMBER 31, 1997 and 1996
Note 11: - Subsequent Events (Continued)
On October 2, 1998, Eagle Insurance Company signed a
subscription agreement to acquire a certain number of common
shares of EXTECH Corporation for one million dollars
($1,000,000). The closing of the transaction is subject to a
number of conditions and is anticipated to close
simultaneously with the above transaction.
F-14
<PAGE>
<TABLE>
<CAPTION>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
COMBINED BALANCE SHEETS
AS AT SEPTEMBER 30,
(Unaudited)
1998 1997
---------- ----------
ASSETS
Current Assets
<S> <C> <C>
Cash in bank $ 93,226 $ -
Accounts receivable 498,558 386,621
Prepaid expenses and other current assets 73,090 63,008
---------- ----------
Total Current Assets 664,874 449,629
--------------------
Fixed assets 1,021,530 1,169,358
Due from related companies - 94,464
Loan receivable - shareholders 344,892 228,246
Loan receivable - minority shareholders 106,782 45,000
Deferred taxes 187,900 75,800
Deposits and other assets 71,889 62,998
---------- ----------
Total Assets $2,397,867 $2,125,495
- ------------ ========== ==========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities
Current portion of long-term debt $ 158,044 $ 141,317
Notes payable - EXTECH Corporation 750,000 -
Notes payable - other 205,388 35,388
Cash overdraft - 173,120
Accounts payable and accrued expenses 867,152 622,868
Premiums payable 101,757 19,952
Income taxes payable 25,708 39,382
---------- ----------
Total Current Liabilities 2,108,049 1,032,027
-------------------------
Long-term debt 154,745 267,493
Loans payable - minority shareholders 92,910 79,800
Deferred revenue 302,466 434,128
Deferred income taxes 2,700 3,400
Minority interest in affiliated companies 1,181,243 1,354,196
Shareholders' Equity (Deficit) ( 1,444,246) ( 1,045,549)
- ------------------------------ ---------- ----------
Total $2,397,867 $2,125,495
- ----- ========== ==========
</TABLE>
F-15
<PAGE>
<TABLE>
<CAPTION>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
COMBINED STATEMENTS OF OPERATIONS
FOR THE PERIODS JANUARY 1, - September 30,
(Unaudited)
1998 1997
---------- ----------
Revenue
<S> <C> <C>
From - commissions $3,564,811 $3,539,355
- fees and other 2,608,998 2,835,608
---------- ----------
Total Revenue 6,173,809 6,374,963
-------------
Operating Expenses
Selling 1,885,371 1,993,942
General and administrative 4,628,343 4,569,198
Depreciation and amortization 150,500 158,109
---------- ----------
Total Operating Expenses 6,664,214 6,721,249
------------------------ ---------- ----------
Net Operating (Loss) for Period
Before Other Income/Expense ( 490,405) ( 346,286)
- --------------------------------
Sale of book of business - 535,334
Interest expense 63,776 16,508
---------- ----------
Net (Loss)/Income for Period Before
Provision for Income Taxes ( 554,181) 172,540
- -----------------------------------
Provision for income taxes ( 90,282) 21,649
---------- ----------
Net (Loss)/Income for Period Before
Minority Interest ( 463,899) 150,891
- -----------------------------------
Minority interest in affiliated companies ( 98,414) 112,591
---------- ----------
Net (Loss)/Income for Period ($ 365,485) $ 38,300
- ---------------------------- ========== ==========
</TABLE>
F-16
<PAGE>
<TABLE>
<CAPTION>
DEALERS CHOICE AUTOMOTIVE PLANNING, INC.
AND AFFILIATED COMPANIES
COMBINED STATEMENT OF CASH FLOWS
FOR THE PERIOD JANUARY 1, - SEPTEMBER 30,
(Unaudited)
1998 1997
-------- --------
Cash Flows from Operating Activities:
<S> <C> <C>
Net (loss)/income for period ($365,485) $ 38,300
Adjustments to reconcile net (loss)/income
to net cash (used in)/provided by
operating activities:
Depreciation and amortization 150,500 158,109
Deferred taxes ( 95,400) 7,000
Changes in assets and liabilities:
Accounts receivable 49,503 110,457
Prepaid expenses and other assets ( 11,851) ( 8,780)
Deposits and other assets ( 7,877) ( 7,115)
Accounts payable and accrued expenses 279,937 ( 21,489)
Premiums payable 79,448 ( 119,842)
Deferred revenue and taxes ( 181,810) ( 80,398)
Income taxes payable ( 11,401) ( 7,739)
--------- --------
Net cash (used in)/provided by
operating activities ( 114,436) 68,503
------------------------------ -------- ---------
Cash Flows from Investing Activities:
Redemption of stock (net) ( 3,200) ( 13,800)
Purchase of fixed assets ( 41,334) ( 68,352)
(Decrease)/increase in minority interest
in affiliated companies ( 88,614) 242,960
------- --------
Net cash (used in)/provided by
investing activities ( 133,148) 160,808
------------------------------ -------- --------
Cash Flows from Financing Activities:
Increase/(decrease) due from related companies 76,455 ( 50,931)
Increase/(decrease) in loan receivable
- shareholders 7,454 ( 26,051)
Decrease/(increase) in loan payable
- minority shareholders (net) ( 46,172) 5,000
Reduction of long-term debt ( 94,528) ( 126,412)
Increase/(decrease) in notes payable 399,805 ( 133,785)
-------- --------
Net cash provided by/(used in)
financing activities 343,014 ( 332,179)
------------------------------ -------- --------
Net Changes in Cash Equivalents 95,430 ( 102,068)
- -------------------------------
Cash overdraft - January 1, ( 2,204) ( 70,252)
-------- --------
Cash balance (overdraft) - September 30, $ 93,226 ($173,120)
======== ========
Supplemental Disclosure of Cash Flow Information
Cash paid during the year for:
Interest $ 18,627 $ 16,508
======== ========
Taxes $ 18,582 $ 23,000
======== ========
</TABLE>
See Accountant's Report
F-17
<PAGE>
AGREEMENT Appendix A
AMONG
EXTECH CORPORATION
MORTON L. CERTILMAN
JAY M. HAFT
KEVIN LANG
AND
ABRAHAM WEINZIMER
As of May 8, 1998
<PAGE>
TABLE OF CONTENTS
Page
RECITALS:......................................................................2
ARTICLE I
DEFINED TERMS; SCHEDULES.......................................................3
1.1 Defined Terms.........................................................3
1.2 Schedules.............................................................3
ARTICLE II
PURCHASE AND SALE; LOANS.......................................................3
2.1 Agreement to Sell.....................................................3
2.2 Agreement to Purchase.................................................3
2.3 Purchase Price........................................................3
2.3.1 Purchase Price.................................................3
2.3.2 Delivery of Purchase Price.....................................3
2.3.3 Allocation of Purchase Price...................................4
2.4 Additional Purchases..................................................4
2.4.1 Purchases from EXTECH..........................................4
2.4.2 Purchases from Sterling Foster.................................5
2.5 Loans to DCAP and the Shareholders....................................5
2.5.1 $311,000 Loan..................................................5
2.5.2 Closing Loans..................................................6
2.5.3 Prior Loans....................................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES THE SHAREHOLDERS................................7
3.1 Valid Existence; Qualification........................................7
3.2 Capitalization; Subsidiaries; Affiliated Entities.....................8
3.3 Consents..............................................................8
3.4 Authority; Binding Nature of Agreement................................8
3.5 Financial Statements..................................................9
3.6 Liabilities...........................................................9
3.7 Actions Since the Balance Sheet Date..................................9
3.8 Adverse Developments.................................................10
3.9 Taxes................................................................10
3.10 Ownership of Assets; Interest in Assets.............................10
3.10.1 Assets Generally.............................................10
EXTECH CORPORATION
<PAGE>
3.10.2 Interest in Assets...........................................10
3.11 Insurance......................................................10
3.12 Litigation; Compliance with Law................................11
3.13 Real Property..................................................11
3.14 Agreements and Obligations; Performance........................12
3.15 Condition of Assets............................................12
3.16 Permits and Licenses...........................................12
3.17 Occupational Heath and Safety and Environmental Matters........13
3.18 Intellectual Property..........................................13
3.19 Compensation Information.......................................14
3.20 Employee Benefit Plans.........................................14
3.21 No Breach......................................................15
3.22 Brokers........................................................16
3.23 Employment Relations...........................................16
3.24 Prior Names and Addresses......................................17
3.25 Payments.......................................................17
3.26 Books and Records..............................................17
3.27 Americans with Disabilities Act Compliance.....................17
3.28 Proxy Statement................................................17
3.29 Untrue or Omitted Facts........................................18
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EXTECH......................................18
4.1 Valid Corporate Existence............................................18
4.2 Capitalization.......................................................18
4.3 Consents.............................................................18
4.4 Corporate Authority; Binding Nature of Agreement.....................19
4.5 SEC Report...........................................................19
4.6 No Breach............................................................19
4.7 Actions Since the Balance Sheet Date.................................19
4.8 Adverse Developments.................................................20
4.9 Taxes................................................................20
4.10 Ownership of Assets; Interest in Assets.............................21
4.10.1 Assets Generally.............................................21
4.10.2 Interest in Assets...........................................21
4.11 Insurance...........................................................21
4.12 Litigation; Compliance with Law.....................................21
4.13 Real Property.......................................................21
4.14 Agreements and Obligations; Performance.............................21
4.15 Condition of Assets.................................................22
4.16 Permits and Licenses................................................22
4.17 Occupational Heath and Safety and Environmental Matters. ...........22
EXTECH CORPORATION
<PAGE>
4.18 Intellectual Property...............................................23
4.19 Compensation Information............................................23
4.20 Employee Benefit Plans..............................................23
4.21 Brokers.............................................................25
4.22 Employment Relations................................................25
4.23 Payments............................................................26
4.24 Books and Records...................................................26
4.25 Americans with Disabilities Act Compliance..........................26
4.26 Proxy Statement.....................................................26
4.27 Untrue or Omitted Facts.............................................26
ARTICLE V
PRE-CLOSING COVENANTS.........................................................26
5.1 Shareholder Covenants...............................................26
5.2 EXTECH Covenants....................................................29
ARTICLE VI
ACQUISITION OF SHARES.........................................................31
6.1 Investment Intent; Qualification as Purchaser.......................31
6.2 Restrictive Legend..................................................32
6.3 Certain Risk Factors................................................33
ARTICLE VII
CONDITIONS PRECEDENT TO THE OBLIGATION OF EXTECH TO CLOSE.....................33
7.1 Representations and Warranties......................................33
7.2 Covenants...........................................................33
7.3 Certificate.........................................................33
7.4 Shares; Purchase Price..............................................33
7.5 Sterling Foster Purchases...........................................33
7.6 Stockholder Approval................................................33
7.7 DCAP Financial Statements...........................................33
7.8 Employment Agreements...............................................34
7.9 Restrictive Covenant Agreements.....................................34
7.10 Fairness Opinion....................................................34
7.11 "Cold Comfort" Letter...............................................34
7.12 Closing Notes; Closing Pledge Agreements............................34
7.13 Opinions of Counsel.................................................34
7.14 Buy Out Agreement...................................................34
7.15 Size of Boards; Election as Members ................................34
EXTECH CORPORATION
<PAGE>
7.16 No Actions..........................................................34
7.17 Consents; Licenses and Permits......................................35
7.18 Sections 4(2) and 4(1) Compliance...................................35
7.19 Actions.............................................................35
7.20 Additional Documents................................................35
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATION OF THE SHAREHOLDERS TO CLOSE...........35
8.1 Representations and Warranties......................................36
8.2 Covenants...........................................................36
8.3 Certificate.........................................................36
8.4 EXTECH Shares.......................................................36
8.5 Sterling Foster Purchases...........................................36
8.6 Stockholder Approval................................................36
8.7 Employment Agreements; Stock Option Agreements......................36
8.8 Certilman and Haft Purchases........................................36
8.9 Closing Loans.......................................................36
8.10 Size of Board and Committees; Election as Directors and Members.....36
8.11 Tax Opinion.........................................................37
8.12 Opinion of Counsel..................................................37
8.13 Buy Out Agreement...................................................37
8.14 No Actions..........................................................37
8.15 Consents; Licenses and Permits......................................37
8.16 Corporate Actions...................................................37
8.17 Additional Documents................................................37
ARTICLE IX
CONDITIONS PRECEDENT TO THE OBLIGATION OF CERTILMAN AND HAFT TO CLOSE.........38
9.1 Shares/EXTECH Acquisition Shares....................................38
9.2 Sterling Foster Purchases...........................................38
9.3 Stockholder Approval................................................38
9.4 EXTECH Additional Shares............................................38
9.5 Shareholder Purchases...............................................38
9.6 Employment Agreements; Stock Option Agreements......................38
9.7 No Actions..........................................................38
9.8 Corporate Actions...................................................38
9.9 Additional Documents................................................39
EXTECH CORPORATION
<PAGE>
ARTICLE X
CLOSING.......................................................................39
10.1 Time and Location...................................................39
10.2 Items to be Delivered by the Shareholders...........................39
10.3 Items to be Delivered by EXTECH.....................................40
10.4 Items to be Delivered by Certilman and Haft.........................40
ARTICLE XI
POST-CLOSING MATTERS..........................................................40
11.1 Further Assurances..................................................40
11.2 Agreement as to Voting..............................................40
11.3 Sales of EXTECH Shares..............................................41
ARTICLE XII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION..................................41
12.1 Survival............................................................41
12.2 Indemnification.....................................................41
12.2.1 General Indemnification Obligation of the Shareholders......41
12.2.2 General Indemnification Obligation of EXTECH................42
12.2.3 Method of Asserting Claims, Etc.............................42
12.2.4 Limitations.................................................44
12.3 Arbitration.........................................................44
12.4 Other Rights and Remedies Not Affected..............................45
ARTICLE XIII
TERMINATION AND WAIVER........................................................45
13.1 Termination.........................................................45
13.2 Waiver..............................................................46
ARTICLE XIV
DEFINED TERMS.................................................................46
14.1 Defined Terms.......................................................46
ARTICLE XV
MISCELLANEOUS PROVISIONS......................................................52
15.1 Expenses............................................................52
15.2 Confidential Information............................................52
EXTECH CORPORATION
<PAGE>
15.3 Equitable Relief...................................................53
15.4 Publicity..........................................................53
15.5 Entire Agreement...................................................53
15.6 Notices............................................................53
15.7 Choice of Law; Severability........................................54
15.8 Successors and Assigns; No Assignment..............................54
15.9 Counterparts.......................................................54
15.10 Facsimile Signatures...............................................55
15.11 Representation by Counsel; Interpretation..........................55
15.12 Headings; Gender...................................................55
SCHEDULES
A Affiliated Companies
B Joint Ventures
2.5.1 Uses of Loan Proceeds
3.2(a) Liens
3.2(b) Investments
3.3 Consents
3.5 Financial Statements
3.7 Actions Since the Balance Sheet Date
3.8 Adverse Developments
3.10.1 Assets Generally
3.11 Insurance
3.12 Litigation; Compliance with Law
3.13 Real Property
3.14 Agreements and Obligations; Performance
3.15 Condition of Assets
3.16 Permits and Licenses
3.18 Intellectual Property
3.19 Compensation Information
3.20 Employee Benefits
3.21 No Breach
3.24 Prior Names and Addresses
4.3 Consents
4.7 Actions Since the Balance Sheet Date
4.8 Adverse Developments
4.11 Insurance
4.12 Litigation; Compliance with Law
4.13 Real Property
4.14 Agreements and Obligations; Performance
4.15 Condition of Assets
4.16 Permits and Licenses
4.18 Intellectual Property
4.19 Compensation Information
4.20 Employee Benefits
8 Excluded DCAP Entity Provisions
EXTECH CORPORATION
<PAGE>
EXHIBITS
2.4.1(a) Additional Shares Note
2.4.1(b) Additional Shares Pledge Agreement
2.5.2(a) Closing Loan Note
2.5.2(b) Closing Loan Pledge Agreement
7.8 Employment Agreement
7.9 Restrictive Covenant Agreement
7.13 Opinion of Counsel
7.14 Buy Out Agreement
8.7 Stock Option Agreement
EXTECH CORPORATION
<PAGE>
AGREEMENT, dated as of May 8, 1998 (the "Agreement"), by and among
EXTECH CORPORATION, a Delaware corporation ("EXTECH"), MORTON L. CERTILMAN
("Certilman"), JAY M. HAFT ("Haft"), KEVIN LANG ("Lang") and ABRAHAM WEINZIMER
("Weinzimer" and together with Lang, individually, a "Shareholder" and
collectively, the "Shareholders").
RECITALS:
The Shareholders own (i) all of the outstanding Common Shares of
Dealers Choice Automotive Planning Inc. ("DCAP") and certain other corporations,
as set forth on Schedule A attached hereto (collectively with DCAP, the
"Affiliated Companies") (the "Company Shares") and (ii) certain of the
outstanding Common Shares of certain other corporations and certain membership
interests in a certain limited liability company, all as set forth on Schedule B
attached hereto (collectively, the "Joint Ventures" and together with the
Affiliated Companies, the "DCAP Entities") (the "Joint Venture Shares"). The
Joint Venture Shares and the Company Shares are referred to collectively as the
"Shares".
The DCAP Entities are engaged in the following businesses: (i) retail
automotive, motorcycle and boat casualty and liability insurance brokerage
("Insurance Brokerage"); (ii) insurance premium finance ("Premium Finance");
(iii) income tax preparation ("Tax Preparation"); and (iv) automobile and travel
club ("Auto Club") (collectively, the "DCAP Business"), as identified for each
DCAP Entity on Schedules A and B attached hereto.
Subject to the terms and conditions hereof, at the Closing (as
hereinafter defined), the Shareholders desire to sell to EXTECH, and EXTECH
desires to purchase from the Shareholders, the Shares.
Subject to the terms and conditions hereof, at the Closing, each of
Lang and Weinzimer desires to purchase from EXTECH, and EXTECH desires to sell
to each of them, 475,000 shares of Common Stock (950,000 shares in the
aggregate) of EXTECH.
Subject to the terms and conditions hereof, at the Closing, each of
Certilman and Haft desires to purchase from EXTECH (directly or indirectly
through a retirement trust or designee), and EXTECH desires to sell to each of
them, 226,000 shares of Common Stock (452,000 shares in the aggregate) of
EXTECH.
Subject to the terms and conditions hereof, concurrently with the
Closing, each of Certilman, Haft, Lang and Weinzimer desires to purchase from
Sterling Foster Holding Corp. 450,000 shares of Common Stock (1,800,000 shares
in the aggregate) of EXTECH currently registered in the name of Certilman, as
voting trustee.
The parties intend that the transactions contemplated hereby satisfy
the provisions of Section 351 of the Internal Revenue Code of 1986, as amended
(the "Code").
EXTECH CORPORATION
2
<PAGE>
NOW, THEREFORE, in consideration of the recitals and the respective
covenants, representations, warranties and Agreements herein contained and
intending to be legally bound hereby, the parties hereby agree as follows:
ARTICLE I
DEFINED TERMS; SCHEDULES
1.1 Defined Terms. Capitalized terms used in this Agreement will have the
meanings given such terms in Article XIV hereof or elsewhere in the text of this
Agreement, and variants and derivatives of such terms shall have correlative
meanings.
1.2 Schedules. References to a Schedule will include any applicable disclosure
expressly set forth on the face of any other Schedule if specifically
cross-referenced to such other Schedule. Each Schedule and the information,
Agreements and documents expressly listed in each Schedule will be considered a
part of this Agreement as if set forth herein in full and will be deemed to
constitute representations and warranties under this Agreement, limited as set
forth in the applicable provision of this Agreement under which such Schedule is
delivered; provided, however, that the representations and warranties set forth
in this Agreement shall not be affected or deemed qualified, modified or limited
in any respect by the information provided in the Schedules except to the extent
that any qualification, modification or limitation to any representation and
warranty is expressly and conspicuously set forth on the face of such particular
Schedule.
ARTICLE II
PURCHASES AND SALES; LOANS
2.1 Agreement to Sell. At the Closing, upon and subject to the terms and
conditions of this Agreement, the Shareholders shall sell, assign and transfer
to EXTECH all of their right, title and interest in and to all of the Shares,
free and clear of all Liens.
2.2 Agreement to Purchase. At the Closing, upon and subject to the terms and
conditions of this Agreement, EXTECH shall purchase the respective Shares from
the Shareholders in exchange for the Acquisition Purchase Price.
2.3 Purchase Price.
2.3.1Purchase Price. The aggregate purchase price for the Shares (the
"Acquisition Purchase Price") shall be Three Million Three Hundred Thousand
(3,300,000) shares of Common Stock of EXTECH (the "EXTECH Acquisition Shares").
2.3.2 Delivery of Purchase Price. At the Closing, subject to the terms and
conditions hereof, in payment of the Acquisition Purchase Price, EXTECH shall
EXTECH CORPORATION
3
<PAGE>
deliver to each of the Shareholders a certificate representing one-half of the
EXTECH Acquisition Shares against delivery by the Shareholders of certificates
representing their respective Shares, duly endorsed or accompanied by stock
powers duly executed. The certificates representing the Shares shall also be
accompanied by evidence satisfactory to EXTECH of the Shareholders' payment of
all transfer taxes with respect thereto.
2.3.3 Allocation of Purchase Price. The Acquisition Purchase Price shall be
allocated among the Shares acquired hereunder as may be agreed to among the
parties hereto in order to properly reflect the respective fair market values of
the Shares. The Shareholders and EXTECH hereby covenant and agree that they will
not take a position on any income tax return, before any governmental agency
charged with the collection of any income tax, or in any judicial proceeding
that is in any way inconsistent with the terms of this Section 2.3.3.
2.4 Additional Purchases.
2.4.1 Purchases from EXTECH. (a) Subject to the terms and conditions
hereof, at the Closing, each of Certilman and Haft will purchase (or, to the
extent necessary to comply with the requirements of Section 351 of the Code,
will cause a retirement trust established for his benefit and/or other designee
to purchase) from EXTECH, and EXTECH shall issue and sell to each of them, Two
Hundred Twenty-Six Thousand (226,000) shares of Common Stock (452,000 shares in
the aggregate) of EXTECH (collectively, the "EXTECH Management Additional
Shares") at a purchase price of Twenty-Five Cents ($.25) per share (the "EXTECH
Additional Shares Purchase Price"). The EXTECH Additional Shares Purchase Price
shall be paid by certified check or, at the option of EXTECH, wire transfer to
EXTECH of immediately available funds.
(b) Subject to the terms and conditions hereof, at the Closing, each
of Lang and Weinzimer will purchase (or, in the case of Lang, will cause a
retirement trust established for his benefit to purchase) from EXTECH, and
EXTECH shall issue and sell to each of them, Four Hundred Seventy-Five
Thousand (475,000) shares of Common Stock (950,000 shares in the aggregate)
of EXTECH (collectively, the "950,000 Additional Shares" and together with
the EXTECH Management Additional Shares, the "EXTECH Additional Shares" and
together further with the EXTECH Acquisition Shares, the "EXTECH Shares")
at the EXTECH Additional Shares Purchase Price. The EXTECH Additional
Shares Purchase Price shall be paid as follows: (i) an amount in cash equal
to the par value of the 950,000 Additional Shares ($.01 per share or an
aggregate of $9,500) and (ii) the balance thereof by the delivery by each
of Lang and Weinzimer of a promissory note in the principal amount of One
Hundred Fourteen Thousand Dollars ($114,000) (an aggregate of $228,000)
(collectively, the "Additional Shares Notes") that will provide for, among
other things, the following:
(i) interest at the rate of six percent (6%) per annum; and
(ii) payment of the principal amount thereof, together with
accrued interest thereon, in six (6) equal annual installments,
EXTECH CORPORATION
4
<PAGE>
commencing April 15, 2001 and continuing through April 15, 2006, in
such annual amount as shall be necessary to self-amortize the
Additional Shares Note by April 15, 2006, subject to acceleration to
the extent the respective Shareholder receives any proceeds from the
sale or other disposition of any shares of Common Stock of EXTECH.
The Additional Shares Notes shall be in, or substantially in, the form of
Exhibit 2.4.1(a) attached hereto.
The payment of all amounts due under the Additional Shares Notes shall be
secured by a pledge by each of the Shareholders to EXTECH of Five Hundred
Seventy Thousand (570,000) shares of Common Stock of EXTECH pursuant to pledge
agreements that will be entered into at the Closing (collectively, the
"Additional Shares Pledge Agreements"). The Additional Shares Pledge Agreements
shall be in, or substantially in, the form of Exhibit 2.4.1(b) attached hereto.
2.4.2 Purchases from Sterling Foster. The parties acknowledge that One
Million Eight Hundred Thousand (1,800,000) shares of Common Stock of EXTECH (the
"Sterling Foster Shares") are registered in the name of "Morton Certilman as
Voting Trustee U/A dated December 30, 1996" and are held pursuant to a Voting
Trust Agreement dated as of December 30, 1996 between Certilman and Sterling
Foster Holding Corp. ("Sterling Foster") (the "Voting Trust Agreement") pursuant
to which a voting trust certificate was issued to Sterling Foster with regard to
the Sterling Foster Shares. Subject to the terms and conditions hereof, each of
Certilman, Haft, Lang and Weinzimer shall use his best efforts to purchase,
contemporaneously with the Closing, Four Hundred Fifty Thousand (450,000) of the
Sterling Foster Shares (1,800,000 shares in the aggregate) at a purchase price
of Twenty-Five Cents ($.25) per share (collectively, the "Sterling Foster
Purchases"). The parties acknowledge and agree that any such purchase will be
conditioned upon the concurrent termination of the Voting Trust Agreement.
2.5 Loans to DCAP and the Shareholders.
2.5.1 $311,000 Loan. Simultaneously herewith, EXTECH is loaning to DCAP the
sum of Three Hundred Eleven Thousand Dollars ($311,000) (the "$311,000 Loan").
The $311,000 Loan is evidenced by a promissory note in such principal amount
(the "311,000 Note") that provides for, among other things, the following:
(i) payment of the principal amount thereof on September 30, 1998; and
(ii) interest at the rate of ten percent (10%) per annum, payable with
the principal payment.
The $311,000 Loan may be used by DCAP only for the purposes set forth on
Schedule 2.5.1 attached hereto, and for no other purpose.
The repayment of all amounts due under the $311,000 Note is secured by the
pledge by the Shareholders of the Shares pursuant to the terms of a certain
EXTECH CORPORATION
5
<PAGE>
Pledge Agreement, dated as of November 26, 1997, by and among the Shareholders
and EXTECH, as amended by the terms hereof (the "Initial Pledge Agreement").
2.5.2 Closing Loans. Subject to the terms and conditions hereof, at the
Closing, EXTECH will loan to each of Lang and Weinzimer the amount of One
Hundred Twelve Thousand Five Hundred Dollars ($112,500) (an aggregate of
$225,000) (collectively, the "Closing Loans"). The proceeds of the Closing Loans
will be used by the Shareholders solely for the purpose of purchasing the
Sterling Foster Shares from Sterling Foster. The Closing Loans will be evidenced
by promissory notes of the respective Shareholders, each in the principal amount
of One Hundred Twelve Thousand Five Hundred Dollars ($112,500) ($225,000 in the
aggregate) (collectively, the "Closing Loan Notes" and together with the
Additional Shares Notes, the "Closing Notes"), that will provide for, among
other things, the following:
(i) interest at the rate of six percent (6%) per annum;
(ii) payment of the principal amount thereof, together with accrued
interest thereon, in six (6) equal annual installments, commencing April
15, 2001 and continuing through April 15, 2006, in such annual amount as
shall be necessary to self-amortize the Closing Loan Note by April 15,
2006, subject to acceleration to the extent the respective Shareholder
receives any proceeds from the sale or other disposition of any shares of
Common Stock of EXTECH;
(iii) non-recourse against the Shareholder; and
(iv) the right of the Shareholder to satisfy the amounts due under the
Closing Loan Note by delivering his respective shares of Common Stock of
EXTECH valued at the greater of (A) twenty-five cents ($.25) per share or
(B) the average Market Price (as such term is defined in the Closing Loan
Note) for the twenty (20) trading days immediately preceding the date of
delivery of the shares.
The Closing Loan Notes shall be in, or substantially in, the form of
Exhibit 2.5.2(a) attached hereto.
The repayment of all amounts due under the Closing Loan Notes shall be
secured by a pledge by each of the Shareholders to EXTECH of his respective
acquired Sterling Foster Shares pursuant to pledge agreements that will be
entered into at the Closing (collectively, the "Closing Loan Pledge Agreements"
and together with the Additional Shares Pledge Agreements, the "Closing Pledge
Agreements"). The Closing Loan Pledge Agreements shall be in, or substantially
in, the form of Exhibit 2.5.2(b) attached hereto.
2.5.3 Prior Loans. (a) The parties acknowledge that, on November 26, 1997,
EXTECH loaned to DCAP Three Hundred Twenty-Five Thousand Dollars ($325,000) (the
"$325,000 Loan"). The $325,000 Loan is evidenced by a promissory note in such
principal amount (the "$325,000 Note"). The parties acknowledge further that, on
EXTECH CORPORATION
6
<PAGE>
March 20, 1998, EXTECH loaned to DCAP the additional sum of One Hundred Fourteen
Thousand Dollars ($114,000) (the "$114,000 Loan"). The $114,000 Loan is
evidenced by a promissory note in such principal amount (the "$114,000 Note").
The repayment of all amounts due under the $325,000 Note and $114,000 Note is
secured by the pledge by the Shareholders of the Shares pursuant to the terms of
the Initial Pledge Agreement.
(b) The parties agree that the $325,000 Note is amended to provide
that (i) the principal amount thereof shall be payable on September 30,
1998, subject to acceleration as set forth therein (except that the payment
default occurring prior to the date hereof is hereby waived by EXTECH),
(ii) the reference in the $325,000 Note to that certain letter of intent of
even date therewith by and among DCAP, Lang, Weinzimer and EXTECH (the
"Letter of Intent") shall hereafter refer instead to this Agreement and
(iii) the payment of amounts due thereunder shall be subject to no defense,
counter-claim or right of offset or setoff (it being understood that, in
all other respects, the $325,000 Note shall continue in full force and
effect in accordance with its terms). The parties agree further that the
$114,000 Note is amended to provided that the reference therein to the
Letter of Intent shall hereafter refer instead to this Agreement (it being
understood that, in all other respects, the $114,000 Note shall continue in
full force and effect in accordance with its terms).
(c) The parties agree further that the Initial Pledge Agreement is
hereby amended to provide that all references therein to "Pledged Shares"
as being security for the performance by DCAP of all of its obligations
under the Notes (as defined therein, which shall be deemed to include the
$325,000 Note, the $114,000 Note and the $311,000 Note) shall be deemed to
include (i) all proceeds thereof (as such term is defined in Section 9-306
of the Code (as defined therein)), including, without limitation, all
dividends or other income from the Pledged Shares, collections thereon and
distributions with respect thereto, whether arising before or after the
date hereof and (ii) all shares, stock certificates, options or rights of
any nature whatsoever that may be issued, or may have been issued, to
either Shareholder with regard thereto, in substitution or replacement
thereof, as a conversion thereof, in exchange therefor or otherwise in
respect thereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE SHAREHOLDERS
The Shareholders, jointly and severally, make the following representations
and warranties to EXTECH, each of which shall be deemed material, and EXTECH, in
executing, delivering and consummating this Agreement, has relied upon the
correctness and completeness of each of such representations and warranties:
3.1 Valid Existence; Qualification. Each DCAP Entity (other than Tax Services)
is a corporation organized, validly existing and in good standing under the laws
of the state of its incorporation. Tax Services is a limited liability company
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duly organized, validly existing and in good standing under the laws of New
York. Each DCAP Entity has the power to carry on its respective DCAP Business as
now conducted and to own its assets. No DCAP Entity is required to qualify in
any other jurisdiction in order to own its assets or to carry on its respective
DCAP Business as now conducted, and there has not been any claim by any other
jurisdiction to the effect that any DCAP Entity is required to qualify or
otherwise be authorized to do business as a foreign corporation or foreign
limited liability company therein. The copies of each DCAP Entity's Certificate
of Incorporation, as amended to date (certified by the Secretary of the State of
the state of its incorporation), and each DCAP Entity's By-Laws or, in the case
of Tax Services, Articles of Organization and Operating Agreement, as amended to
date (certified by the Secretary of the respective DCAP Entity), which have been
delivered to EXTECH, are true and complete copies of those documents as in
effect on the date hereof.
3.2 Capitalization; Subsidiaries; Affiliated Entities. (a) The Shareholders own
(i) all of the outstanding Common Shares of each of the Affiliated Companies and
(ii) the percentage of the outstanding Common Shares or, in the case of Tax
Services, membership interests of each of the Joint Ventures as is set forth on
Schedule B attached hereto, in each case free and clear of all Liens (except as
set forth on Schedule 3.2(a) attached hereto). All of the Shares are duly
authorized, validly issued, fully paid and nonassessable. No DCAP Entity is
authorized to issue any capital stock other than Common Shares, there are no
outstanding securities or evidences of indebtedness of any DCAP Entity that are
convertible into or exchangeable for any Common Shares of any DCAP Entity
("Derivative Securities") and there are no outstanding options, warrants or
other rights or commitments for the purchase or acquisition of any Common Shares
or Derivative Securities of any DCAP Entity. At the Closing, EXTECH will acquire
good and marketable title to the Shares, free and clear of all Liens.
(b) The DCAP Entities are engaged in the respective businesses identified
on Schedule B attached hereto. No DCAP Entity has made any investments in, or
owns, any of the capital stock of, or any other proprietary interest in, any
other Person.
(c) Except for the DCAP Entities or as set forth on Schedule 3.2(b)
attached hereto, neither Shareholder has made any investments in, or owns, any
of the capital stock of, or any other proprietary interest in, any other Person
engaged in any business which is similar to or competitive with the DCAP
Business.
3.3 Consents. Except as set forth on Schedule 3.3 attached hereto, no consent of
any Body or other Person was or is required to be received by or on the part of
any DCAP Entity or either of the Shareholders to enable either Shareholder to
enter into and carry out this Agreement and the transactions contemplated
hereby, including, without limitation, the transfer to EXTECH of all of the
right, title and interest of the Shareholders in and to the Shares. Except as
set forth on Schedule 3.3, all such consents have been obtained.
3.4 Authority; Binding Nature of Agreement. Each of the Shareholders has the
power to enter into this Agreement and to carry out his respective obligations
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hereunder. This Agreement constitutes the valid and binding obligation of each
of the Shareholders and is enforceable in accordance with its terms.
3.5 Financial Statements. The DCAP Financial Statements (i) are true and
complete, (ii) are in accordance with the Books and Records of the DCAP
Entities, (iii) fairly present the combined financial position of the DCAP
Entities and separate financial position of each DCAP Entity as of the DCAP
Balance Sheet Date and the combined and separate results of their operations for
the year then ended, and (iv) were prepared in conformity with generally
accepted accounting principles consistently applied throughout the periods
covered thereby.
3.6 Liabilities. As at the DCAP Balance Sheet Date, no DCAP Entity had any
Liabilities, other than those Liabilities reflected or reserved against in the
DCAP Balance Sheet, and there was no basis for the assertion against any DCAP
Entity of any material Liability not so reflected or reserved against therein.
As of the date hereof, the aggregate Liabilities of the Affiliated Companies to
the Joint Ventures do not exceed $104,000.
3.7 Actions Since the Balance Sheet Date. Except as otherwise expressly provided
or set forth in, or required by, this Agreement, or as set forth in Schedule 3.7
attached hereto, since the DCAP Balance Sheet Date, no DCAP Entity has (i)
incurred any material Liability, (ii) made any wage or salary increases or
granted any bonuses; (iii) mortgaged, pledged or subjected to any Lien any of
its assets, or permitted any of its assets to be subjected to any Lien; (iv)
sold, assigned or transferred any of its assets, except in the ordinary and
usual course of business consistent with past practice; (v) changed its
accounting methods, principles or practices; (vi) revalued any of its assets,
including, without limitation, writing down the value of inventory or writing
off notes or accounts receivable; (vii) incurred any damage, destruction or loss
(whether or not covered by insurance) adversely affecting its assets or business
which has had or could be reasonably expected to have a Material Adverse Effect;
(viii) cancelled any indebtedness or waived or released any right or claim which
has had or could be reasonably expected to have a Material Adverse Effect; (ix)
incurred any material adverse change in employee relations; (x) amended,
cancelled or terminated any Contract or Permit or entered into any Contract or
Permit which is not in the ordinary course of business consistent with past
practice; (xi) increased or changed its assumptions underlying, or methods of
calculating, any doubtful account contingency or other reserves; (xii) paid,
discharged or satisfied any Liabilities other than the payment, discharge or
satisfaction in the ordinary course of business of Liabilities set forth or
reserved for on the DCAP Balance Sheet or incurred in the ordinary course of
business; (xiii) made any capital expenditure, entered into any lease or
incurred any obligation to make any capital expenditure; (xiv) failed to pay or
satisfy when due any Liability; (xv) failed to carry on its business in the
ordinary course, consistent with the past practices, so as to reasonably keep
available the services of its employees, and to preserve its assets and business
and the goodwill of its suppliers, customers, distributors and others having
business relations with it; (xvi) disposed of or allowed the lapse of any
Proprietary Rights or disclosed to any person any Proprietary Rights not
theretofore a matter of public knowledge; or (xvii) other than this Agreement or
the transactions contemplated hereby, entered into any transaction or course of
conduct not in the ordinary and usual course of business and consistent with
past practice.
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3.8 Adverse Developments. Except as set forth on Schedule 3.8 attached hereto,
since the DCAP Balance Sheet Date, there has been no material adverse change in
the assets, business, operations (financial or otherwise), or prospects of any
DCAP Entity, there has been no act or omission on the part of any DCAP Entity or
others which would form the basis for the assertion against any DCAP Entity of
any material Liability, no other event has occurred which could be reasonably
expected to have a Material Adverse Effect and neither of the Shareholders knows
of any development or threatened development of a nature which could be
reasonably expected to have a Material Adverse Effect.
3.9 Taxes. All taxes, including, without limitation, income, property, sales,
use, utility, franchise, capital stock, excise, value added, employees'
withholding, social security and unemployment taxes imposed by the United
States, any state, locality or any foreign country, or by any other taxing
authority, which have or may become due or payable by each DCAP Entity, and all
interest and penalties thereon, whether disputed or not, have been paid in full
or adequately provided for by reserves shown in its Books and Records; all
deposits required by law to be made by each DCAP Entity or with respect to
estimated income, franchise and employees' withholding taxes have been duly
made; and all tax returns, including estimated tax returns, required to be filed
have been duly and timely filed. No extension of time for the assessment of
deficiencies for any year is in effect. No deficiency notice is proposed, or to
the knowledge of either Shareholder, threatened against any DCAP Entity. The tax
returns of the DCAP Entities have never been audited. No sales or use taxes are
required to be collected in connection with the operation of the DCAP Business.
3.10 Ownership of Assets; Interest in Assets.
3.10.1 Assets Generally. Except as set forth on Schedule 3.10.1 attached
hereto, the DCAP Entities own outright, and have good and marketable title to,
or lease pursuant to leases described on Schedule 3.14, all of their respective
assets (including all assets reflected in the DCAP Balance Sheet, except as the
same may have been disposed of in the ordinary and usual course of business
consistent with past practice since the DCAP Balance Sheet Date), free and clear
of all Liens. Upon consummation of the transactions contemplated by this
Agreement, except as set forth on Schedule 3.10.1, the DCAP Entities will own
their respective assets, free and clear of all Liens. The assets of the DCAP
Entities are sufficient to permit them to conduct the DCAP Business as now
conducted. None of the assets of the DCAP Entities are subject to any
restriction with regard to transferability. There are no Contracts with any
Person with respect to the acquisition of any of the assets of the DCAP Entities
or any rights or interests therein.
3.10.2 Interest in Assets. Neither Shareholder, directly or indirectly,
owns any property or rights, tangible or intangible, used in or related,
directly or indirectly, to the DCAP Business.
3.11 Insurance. Schedule 3.11 attached hereto sets forth a true and complete
list and brief description of all policies of fire, liability and other forms of
insurance held by each DCAP Entity. Except as set forth in Schedule 3.11, such
policies are valid, outstanding and enforceable policies, as to which premiums
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have been paid currently, are with reputable insurers believed by the
Shareholders to be financially sound and are consistent with the practices of
similar concerns engaged in substantially similar operations as those currently
conducted by the DCAP Entities. Except as set forth in Schedule 3.11, there
exists no state of facts, and no event has occurred, which might reasonably (i)
form the basis for any claim against any DCAP Entity not fully covered by
insurance for liability on account of any express or implied warranty or
tortious omission or commission, or (ii) result in any material increase in
insurance premiums.
3.12 Litigation; Compliance with Law. Except as set forth on Schedule 3.12
attached hereto, there are no Actions relating to any DCAP Entity or any of its
assets or business pending or, to the knowledge of each of the Shareholders,
threatened, or any order, injunction, award or decree outstanding, against any
DCAP Entity or against or relating to any of its assets or business; and there
exists no basis for any such Action which would have a Material Adverse Effect.
No Affiliated Company and, to the knowledge of each of the Shareholders and
DCAP, no Joint Venture is in violation of any law, regulation, ordinance, order,
injunction, decree, award, or other requirement of any governmental or other
regulatory body, court or arbitrator relating to its assets or business, the
violation of which would have a Material Adverse Effect. Without limiting the
generality of the foregoing, each of the Affiliated Companies has complied in
all material respects with all laws, regulations and other requirements of all
government and other regulatory bodies with respect to franchises. Neither the
establishment nor operation of the Joint Ventures (including, without
limitation, the use by the Joint Ventures of the "DCAP" or "DCAP Insurance"
name) required or requires any filings with the New York State Department of
State or any other governmental or other regulatory body with respect to
franchising, or was or is subject to any laws, rules or regulations of the
States of New York or New Jersey or the Untied States of America with respect to
franchising. None of the DCAP Entities has any Liability to any franchisee, for
rescission or otherwise, in connection with the offering or sale of franchises.
DCAP Management Inc. ("Management") is the only DCAP Entity that has ever
offered or sold franchises. No DCAP Entity has ever offered or sold franchises
to any Person residing or doing business outside of the State of New York.
Management did not offer or sell franchises prior to the effective date of its
registration with the State of New York with respect thereto.
3.13 Real Property. Schedule 3.13 attached hereto sets forth a brief description
of all real properties which are leased to the DCAP Entities and the terms of
the respective leases, including the identity of the lessor, the rental rate and
other charges, and the term of the lease. No DCAP Entity owns outright the fee
simple title in and to any real property. The real property leases described in
Schedule 3.13 that relate to the leased properties described therein are in full
force and effect and all amounts payable thereunder have been paid. All uses of
such real properties by the Affiliated Companies and, to the knowledge of each
of the Shareholders and DCAP, the Joint Ventures conform in all material
respects to the terms of the leases relating thereto and conform in all material
respects to all applicable building and zoning ordinances, laws and regulations.
None of such leases may be expected to result in the expenditure of material
sums for the restoration of the premises upon the expiration of their respective
terms.
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3.14 Agreements and Obligations; Performance. Except as listed and briefly
described in Schedule 3.14 attached hereto (the "Listed Agreements"), no DCAP
Entity is a party to, or bound by, and neither Shareholder, with respect to any
DCAP Entity, is a party to, or bound by, any: (i) Contract which involves
aggregate payments or receipts in excess of $5,000 that cannot be terminated at
will without penalty or premium or any continuing Liability; (ii) Contract of
any kind with any officer, director, shareholder, manager, member or partner of
the DCAP Entity; (iii) Contract which is violation of applicable law; (iv)
Contract for the purchase, sale or lease of any materials, products, supplies or
services which contains, or which commits or will commit it for, a fixed term;
(v) Contract of employment not terminable at will without penalty or premium or
any continuing Liability; (vi) deferred compensation, bonus or incentive plan or
Contract not cancelable at will without penalty or premium or any continuing
obligation or liability; (vii) management or consulting Contract not terminable
at will without penalty or premium or any continuing Liability; (viii) except as
set forth in Schedule 3.13, lease for real or personal property; (ix) license or
royalty Contract; (x) Contract relating to indebtedness for borrowed money; (xi)
union or other collective bargaining Contract; (xii) Contract which, by its
terms, requires the consent of any party thereto to the consummation of the
transactions contemplated hereby; (xiii) Contract containing covenants limiting
the freedom of the DCAP Entity or any officer, employee, partner, manager or
member thereof to engage or compete in any line of business or with any Person
in any geographical area; (xiv) Contract or option relating to the acquisition
or sale of any business; (xv) voting agreement or similar Contract; (xvi) option
for the purchase of any asset, tangible or intangible; or (xvii) franchise,
license or advertising Contract; (xviii) Contract with the United States
government, any state, local or foreign government or any agency or department
thereof; (xix) Contract that grants any person any right of first refusal or
similar right; (xx) other Contract which materially affects any of its assets or
business, whether directly or indirectly, or which was entered into other than
in the ordinary and usual course of business consistent with past practice. A
true and correct copy of each of the written Listed Agreements has been
delivered, or made available, to EXTECH. Each DCAP Entity has in all material
respects performed all obligations required to be performed by it to date under
all of the Listed Agreements, is not in Default under any of the Listed
Agreements and has received no notice of any dispute, Default or alleged Default
thereunder which has not heretofore been cured or which notice has not
heretofore been withdrawn. Neither Shareholder knows of any Default under any of
the Listed Agreements by any other party thereto or by any other Person bound
thereunder.
3.15 Condition of Assets. Except as set forth on Schedule 3.15 attached hereto,
all machinery, equipment, vehicles and other assets used by the DCAP Entities in
the conduct of the DCAP Business are in good operating condition, ordinary wear
and tear excepted.
3.16 Permits and Licenses. Schedule 3.16 attached hereto sets forth a true and
complete list of all Permits from all Bodies held by the DCAP Entities. Each
DCAP Entity has all Permits of all Bodies required to carry on its business as
presently conducted and to offer and sell its products and services; all such
Permits are in full force and effect, and, to the knowledge of the Shareholders,
no suspension or cancellation of any of such Permits is threatened; and each
DCAP Entity is in compliance in all material respects with all requirements,
standards and procedures of the Bodies which have issued such Permits. Except as
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set forth on Schedule 3.16, no notice to, declaration, filing or registration
with, or Permit from, any Body or any other Person is required to be made or
obtained by any DCAP Entity or either Shareholder in connection with the
execution, delivery or performance of this Agreement and the consummation of the
transactions contemplated hereby.
3.17 Occupational Heath and Safety and Environmental Matters. The operations of
the DCAP Business do not require, and no DCAP Entity has, any Permits from any
Bodies relating to occupational health and safety or environmental matters to
lawfully conduct the DCAP Business. There is no litigation, investigation or
other proceeding pending or, to the knowledge of each of the Shareholders,
threatened or known to be contemplated by any Body in respect of or relating to
the DCAP Business or the assets of the DCAP Entities with respect to
occupational health and safety or environmental matters. All operations of the
DCAP Business have been conducted in compliance with all, and no DCAP Entity is
liable in any respect for any violation of any, applicable federal, state or
local laws or regulations pertaining to occupational health and safety and
environmental matters, including, without limitation, those relating to the
emission, discharge, storage, release or disposal of Materials of Environmental
Concern into ambient air, surface water, ground water or land surface or
sub-surface strata or otherwise relating to the manufacture, processing,
distribution, use, handling, disposal or transport of Materials of Environmental
Concern. No DCAP Entity nor either Shareholder has received any notice of a
possible claim or citation against or in respect of any real property leased by
any DCAP Entity, or with regard to its assets or business, relating to
occupational health and safety or environmental matters and neither of the
Shareholders is aware of any basis for any such Action.
3.18 Intellectual Property. Schedule 3.18 sets forth a true and complete list
and brief description of all Proprietary Rights which are owned by any DCAP
Entity or in which, or with regard to which, it has any right or interest
(including, without limitation, the identity of the DCAP Entity, each
application number, serial number or registration number, the class of goods or
services covered and the expiration date for each country in which Intellectual
Property has been registered). Except as set forth in Schedule 3.14 attached
hereto, DCAP owns all right, title and interest in and to all software utilized
by the DCAP Entities in the operation of their business (such software being
described on Schedule 3.18), free and clear of all Liens, subject only to
license agreements with the Joint Ventures as described on Schedule 3.14. No
other Person has any proprietary or other interest in any such Proprietary
Rights and no DCAP Entity is a party to or bound by any Contract requiring the
payment to any Person of any royalty. No DCAP Entity is infringing upon any
Proprietary Rights or otherwise is violating the rights of any third party with
respect thereto, and no proceedings have been instituted, and no claim has been
received by any DCAP Entity, and neither Shareholder is aware of any claim,
alleging any such violation. There are no pending applications with regard to
any Proprietary Right. Each DCAP Entity has taken all reasonable and prudent
steps to protect the Proprietary Rights from infringement by any other Person.
No other Person (i) has the right to use any Trademark of any DCAP Entity either
in identical form or in such near resemblance thereto as to be likely, when
applied to the goods or services of any such Person, to cause confusion with
such Trademarks or to cause a mistake or to deceive, (ii) has notified any DCAP
Entity that it is claiming any ownership of or right to use any Proprietary
Rights, or (iii) to the best of each Shareholder's knowledge, is infringing upon
any Proprietary Rights in any way.
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3.19 Compensation Information. Schedule 3.19 attached hereto contains a true and
complete list of the names and current salary rates of, bonus commitments to,
and other compensatory arrangements with, all officers and other persons
employed and/or retained by each DCAP Entity.
3.20 Employee Benefit Plans.
(a) Schedules 3.20 (a), (b) and (c) attached hereto list all of the
"pension" and "welfare" benefit plans (within the respective meanings of
sections 3(2) and 3(1) of the Employee Retirement Income Security Act of 1974,
as amended ["ERISA"]), maintained by each DCAP Entity, or to which it makes
employer contributions with respect to its employees, a complete and correct
copy of each of which has been delivered to EXTECH. There are no vested and
unfunded benefits under any such plans.
(b) All of the pension and profit sharing plans maintained by the DCAP
Entities (herein collectively referred to as the "Pension Plans") are listed in
Schedule 3.20(a). Each of the Pension Plans has received a favorable
determination letter as to its qualification under section 401(a) of the Code
(including, but not limited to, amendments made by ERISA), nothing has occurred
with respect to any such Pension Plan which would cause the loss of such
qualification, and the Shareholders have delivered to EXTECH true and correct
copies of all such determination letters.
(c) All of the pension plans not maintained by the DCAP Entities but to
which they make employer contributions with respect to their employees (herein
collectively referred to as the "Other Pension Plans") are listed in Schedule
3.20(b). Each of the Other Pension Plans is a "multi- employer plan" (within the
meaning of section 3(37) of ERISA), but no DCAP Entity is a "substantial
employer" (within the meaning of section 4001(a)(2) of ERISA) with respect to
any of the Other Pension Plans.
(d) All contributions required by law or required under the Pension Plans
with respect to plan years ended prior to the Closing Date have been made by
each DCAP Entity. With regard to the current plan year of each of the Other
Pension Plans, all contributions required to meet the employer contribution
obligations of each DCAP Entity, under section 412 of the Code, Part 3 of Title
I(B) of ERISA, such Other Pension Plan or any applicable collective bargaining
agreement, with respect to that portion of the current plan year ending on the
Closing Date, shall have been made on or prior to the Closing Date by such DCAP
Entity.
(e) No Pension Plan or related trust has terminated, and no "reportable
event" (within the meaning of section 4043(b) of ERISA) has occurred with
respect to any of the Pension Plans or the participation of any DCAP Entity in
any of the Other Pension Plans, other than the transactions contemplated by this
Agreement, since the effective date of ERISA.
(f) None of the Pension Plans which are subject to the provisions of
section 412 of the Code or Part 3 of Title I(B) of ERISA or their related trusts
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has incurred any "accumulated funding deficiency" (within the meanings of
section 412(a) of the Code and section 302 of ERISA) since the effective date of
ERISA.
(g) No DCAP Entity has incurred any Liability (except for required premium
payments, which premium payments have been made for plan years ended prior to
the Closing Date, to the Pension Benefit Guaranty Corporation), with respect to
the Pension Plans.
(h) All of the welfare plans maintained by each DCAP Entity or to which it
makes employer contributions with respect to its employees (herein collectively
referred to as the "Welfare Plans" and together with the Pension Plans and Other
Pension Plans, the "Pension and Welfare Plans")) are listed in Schedule 3.20(c).
There are no Actions pending or, to the knowledge of either of the Shareholders,
threatened, and neither of the Shareholders has any knowledge of any facts which
could give rise to any Actions against any of the Pension Plans, or (with
respect to the participation of any DCAP Entity therein) against any of the
Other Pension Plans or Welfare Plans, or against any DCAP Entity with respect
thereto.
(i) Each DCAP Entity has satisfied in all material respects all reporting
and disclosure requirements applicable to it under ERISA, and the Department of
Labor and Internal Revenue Service regulations promulgated thereunder, with
respect to all of the Pension and Welfare Plans, and each DCAP Entity has
delivered to EXTECH true and complete copies of the most recently filed and
disclosed Forms EBS-1, Forms 5500 and 5500-C (with exhibits), 1976 "ERISA
Notices" and summary plan description for the Pension and Welfare Plans.
(j) None of the Pension and Welfare Plans or any of their related trusts,
or any DCAP Entity or any trustee, administrator or other "party in interest" or
"disqualified person" (within the meaning of section 3(14) of ERISA or section
4975(e)(2) of the Code, respectively) with respect to the Pension or Welfare
Plans, has engaged in any "prohibited transaction" (within the meaning of
section 408 of ERISA or section 4975(c)(23) or (d) of the Code), with respect to
the participation of any DCAP Entity therein, which could subject any of the
Pension or Welfare Plans or related trusts, or any trustee, administrator or
other fiduciary of any Plan, or any DCAP Entity or EXTECH, or any other party
dealing with the Pension or Welfare Plans, to the penalties or excise tax
imposed on prohibited transactions by section 502(i) of ERISA or section 4975 of
the Code.
(k) The Trustees of each of the Pension Plans have completed their required
annual accountings for the most recent plan years, such accountings accurately
reflect the financial positions of the Pension Plans as at such date, and true
and complete copies of the Trustees' reports or schedules of such accountings
have been delivered to EXTECH.
3.21 No Breach. Neither the execution and delivery of this Agreement nor
compliance by either of the Shareholders with any of the provisions hereof nor
the consummation of the transactions contemplated hereby, will:
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(a) violate or conflict with any provision of the Certificate of
Incorporation, ByLaws or other organizational document of any DCAP Entity;
(b) except as set forth on Schedule 3.21 attached hereto (the "Required
Waivers"), (i) violate or, alone or with notice or the passage of time, or both,
result in a breach or termination of, or otherwise give any party the right to
terminate, or declare a Default under, or have any right of first refusal under,
the terms of any real property lease, license agreement or shareholders
agreement to which either Shareholder or any DCAP Entity is a party or is
otherwise bound or (ii) require either Shareholder to resign, or permit another
Person to require that either Shareholder resign, as an officer or director of
any DCAP Entity (it being represented and warranted that, except as set forth on
Schedule 3.21, all Required Waivers have been obtained);
(c) violate or, alone or with notice or the passage of time, or both,
result in the breach or termination of, or otherwise give any party the right to
terminate, or declare a Default under, the terms of any other Contract to which
any DCAP Entity or either of the Shareholders is a party or by which any of them
may be bound, the violation, breach or termination of which, or Default under
which, would have a Material Adverse Effect ;
(d) result in the creation of any Lien upon any of the assets of any DCAP
Entity;
(e) violate any judgment, order, injunction, decree or award against, or
binding upon, any DCAP Entity or either of the Shareholders or upon any of the
assets of any DCAP Entity; and/or
(f) violate any law or regulation of any jurisdiction relating to any
Affiliated Company, either of the Shareholders, or the DCAP Business, or, to the
knowledge of each of the Shareholders and DCAP, any Joint Venture, the violation
of which would have a Material Adverse Effect.
3.22 Brokers. No DCAP Entity nor either of the Shareholders has engaged,
consented to, or authorized any broker, finder, investment banker or other third
party to act on its or his behalf, directly or indirectly, as a broker or finder
in connection with the transactions contemplated by this Agreement.
3.23 Employment Relations. (a) Each DCAP Entity is in compliance with all
Federal, state and other applicable laws, rules and regulations respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and has not engaged in any unfair labor practice which, in any
of the foregoing cases, could have a Material Adverse Effect; (b) there is not
pending, or, to the knowledge of each of the Shareholders, threatened, any
unfair labor practice charge or complaint against any DCAP Entity by or before
the National Labor Relations Board or any comparable state agency or authority;
(c) there is no labor strike, dispute, slowdown or stoppage pending or, to the
knowledge of each of the Shareholders, threatened against or involving any DCAP
Entity; (d) neither of the Shareholders is aware of any union organization
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effort respecting the employees of any DCAP Entity; (e) no grievance which might
have a Material Adverse Effect on any DCAP Entity or the conduct of its
business, nor any arbitration proceeding arising out of or under any collective
bargaining agreement, is pending and no claim therefor has been asserted; (f) no
litigation, arbitration, administrative proceeding or governmental investigation
is now pending, and, to the knowledge of each of the Shareholders, no Person has
made any claim or has threatened litigation, arbitration, administrative
proceeding or governmental investigation against, arising out of any law
relating to discrimination against employees or employment practices; (g) no
collective bargaining agreement is currently being negotiated by any DCAP
Entity; and (h) no DCAP Entity has experienced any material labor difficulties
during the last three (3) years. There has not been, and neither of the
Shareholders anticipates, any material adverse change in relations with
employees of any DCAP Entity as a result of the announcement of the transactions
contemplated by this Agreement.
3.24 Prior Names and Addresses. Since inception, except as set forth on Schedule
3.24 attached hereto, no DCAP Entity has used any business name or had any
business address other than its current name and the business address set forth
in Schedule A and B attached hereto.
3.25 Payments. No Affiliated Company and, to the knowledge of each of the
Shareholders and DCAP, no Joint Venture has, directly or indirectly, paid or
delivered any fee, commission or other sum of money or item or property, however
characterized, to any finder, agent, client, customer, supplier, government
official or other Person, in the United States or any other country, which is
illegal under any federal, state or local laws of the United States (including,
without limitation, the U.S. Foreign Corrupt Practices Act).
3.26 Books and Records. Each Affiliated Company and, to the knowledge of each of
the Shareholders and DCAP, each Joint Venture has made and kept (and given
EXTECH access to) Books and Records and accounts, which, in reasonable detail,
accurately and fairly reflect the activities of its business. No DCAP Entity has
engaged in any material transaction, maintained any bank account or used any
corporate funds in connection with its business except for transactions, bank
accounts and funds which have been and are reflected in the normally maintained
books and records of the DCAP Entity.
3.27 Americans with Disabilities Act Compliance. All facilities owned, leased or
used by the Affiliated Companies and, to the knowledge of each of the
Shareholders and DCAP, the Joint Ventures (collectively "Facilities") have been
constructed and maintained in full compliance with the ADA. No Affiliated
Company and, to the knowledge of each of the Shareholders and DCAP, no Joint
Venture has received any notice to the effect, or otherwise been advised, that
any such Facilities are not in compliance with the ADA. Neither Shareholder has
any reason to anticipate that any existing circumstances at any of the
Facilities are likely to result in violation of the ADA.
3.28 Proxy Statement. The information to be furnished by the Shareholders and
each DCAP Entity for inclusion in the Proxy Statement, when furnished, and at
all times to and including the time of the stockholders' meeting convened for
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the purpose of obtaining Stockholder Approval, will not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein contained not misleading.
3.29 Untrue or Omitted Facts. No representation, warranty or statement by the
Shareholders in this Agreement contains any untrue statement of a material fact,
or omits to state a fact necessary in order to make such representations,
warranties or statements not materially misleading. Without limiting the
generality of the foregoing, there is no fact known to either of the
Shareholders that has had, or which may be reasonably expected to have, a
Material Adverse Effect that has not been disclosed in this Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF EXTECH
EXTECH makes the following representations and warranties to the
Shareholders, each of which shall be deemed material, and the Shareholders, in
executing, delivering and consummating this Agreement, have relied upon the
correctness and completeness of each of such representations and warranties:
4.1 Valid Corporate Existence. EXTECH is a corporation validly existing and in
good standing under the laws of the State of Delaware. EXTECH has the power to
carry on its business as now conducted and to own its assets. EXTECH is
qualified to do business in the State of New York, is not required to qualify in
any other jurisdiction in order to own its assets or to carry on its business as
now conducted, and there has not been any claim by any other jurisdiction to the
effect that EXTECH is required to qualify or otherwise be authorized to do
business as a foreign corporation therein. The copies of EXTECH's Certificate of
Incorporation, as amended to date (certified by the Secretary of the State of
Delaware) and By-Laws, as amended to date (certified by its Secretary), which
have been delivered to the Shareholders, are true and complete copies of those
documents as in effect on the date hereof.
4.2 Capitalization. The authorized capital stock of EXTECH consists of Ten
Million (10,000,000) shares of Common Stock, $.01 par value, of which Five
Million Five Hundred Ninety- One Thousand Three Hundred Sixty-Seven (5,591,367)
shares are issued and outstanding. All of such issued and outstanding shares of
Common Stock are duly authorized, validly issued, fully paid and nonassessable.
The EXTECH Shares to be issued and delivered to the Shareholders as contemplated
by Article II hereof will be duly and validly authorized and, when so issued and
delivered, will be duly and validly issued, fully paid and nonassessable.
4.3 Consents. Except as set forth on Schedule 4.3 attached hereto, no consent of
any Body or other Person is required to be received by or on the part of EXTECH
to enable it to enter into and carry out this Agreement and the transactions
contemplated hereby.
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4.4 Corporate Authority; Binding Nature of Agreement. EXTECH has the corporate
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the Board of
Directors of EXTECH and, except for Stockholder Approval, no other corporate
proceedings on the part of EXTECH are necessary to authorize the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby. This Agreement constitutes the valid and binding obligation of EXTECH
and is enforceable in accordance with its terms.
4.5 SEC Report. EXTECH has previously delivered to the Shareholders a true and
complete copy, including exhibits, of its Annual Report on Form 10-KSB for the
fiscal year ended December 31, 1997 (the "SEC Report"), such report being the
only report filed by EXTECH with the SEC since January 1, 1998. The SEC Report
does not contain any untrue statement of a material fact, or fail to state any
material fact required to be stated therein or necessary to make the statements
made therein not materially misleading.
4.6 No Breach. Neither the execution and delivery of this Agreement nor
compliance by EXTECH with any of the provisions hereof nor the consummation of
the transactions contemplated hereby, will:
(a) violate or conflict with any provision of the Certificate of
Incorporation or By- Laws of EXTECH;
(b) violate, or alone or with notice or the passage of time, or both,
result in the breach or termination of, or otherwise give any party the right to
terminate, or declare a Default under, the terms of any Contract to which EXTECH
is a party or by which it may be bound, the violation, breach or termination of
which, or Default under which, would have a Material Adverse Effect;
(c) result in the creation of any Lien upon any of the assets of EXTECH;
(d) violate any judgment, order, injunction, decree or award against, or
binding upon, EXTECH or upon any of its assets; or
(e) subject to the accuracy of the representations made by the Shareholders
in Article VI hereof, violate any law or regulation of any jurisdiction relating
to EXTECH, the violation of which would have a Material Adverse Effect.
4.7 Actions Since the Balance Sheet Date. Except as otherwise expressly provided
or set forth in, or required by, this Agreement, or as set forth in the SEC
Report or Schedule 4.7 attached hereto, since the EXTECH Balance Sheet Date,
EXTECH has not (i) incurred any material Liability, (ii) made any wage or salary
increases or granted any bonuses; (iii) mortgaged, pledged or subjected to any
Lien any of its assets, or permitted any of its assets to be subjected to any
,
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Lien; (iv) sold assigned or transferred any of its assets, except in the
ordinary and usual course of business consistent with past practice; (v) changed
its accounting methods, principles or practices; (vi) revalued any of its
assets, including, without limitation, writing down the value of inventory or
writing off notes or accounts receivable; (vii) incurred any damage, destruction
or loss (whether or not covered by insurance) adversely affecting its assets or
business which has had or could be reasonably expected to have a Material
Adverse Effect; (viii) cancelled any indebtedness or waived or released any
right or claim which has had or could be reasonably expected to have a Material
Adverse Effect; (ix) incurred any material adverse change in employee relations;
(x) amended, cancelled or terminated any Contract or Permit or entered into any
Contract or Permit which is not in the ordinary course of business consistent
with past practice; (xi) increased or changed its assumptions underlying, or
methods of calculating, any doubtful account contingency or other reserves;
(xii) paid, discharged or satisfied any Liabilities other than the payment,
discharge or satisfaction in the ordinary course of business of Liabilities set
forth or reserved for on the EXTECH Balance Sheet or incurred in the ordinary
course of business; (xiii) made any capital expenditure, entered into any lease
or incurred any obligation to make any capital expenditure; (xiv) failed to pay
or satisfy when due any Liability; (xv) failed to carry on its business in the
ordinary course, consistent with the past practices, so as to reasonably keep
available the services of its employees, and to preserve its assets and business
and the goodwill of its suppliers, customers, distributors and others having
business relations with it; (xvi) disposed of or allowed the lapse of any
Proprietary Rights or disclosed to any person any Proprietary Rights not
theretofore a matter of public knowledge; or (xvii) other than this Agreement or
the transactions contemplated hereby, entered into any transaction or course of
conduct not in the ordinary and usual course of business and consistent with
past practice..
4.8 Adverse Developments. Since the EXTECH Balance Sheet Date, there has been no
material adverse change in the assets, business, operations (financial or
otherwise), or prospects of EXTECH, there has been no act or omission on the
part of EXTECH or others which would form the basis for the assertion against
EXTECH of any material Liability, no other event has occurred which could be
reasonably expected to have a Material Adverse Effect and, except as set forth
in the SEC Report or set forth in Schedule 4.8 attached hereto, EXTECH does not
know of any development or threatened development of a nature which could be
reasonably expected to have a Material Adverse Effect.
4.9 Taxes. All taxes, including, without limitation, income, property, sales,
use, utility, franchise, capital stock, excise, value added, employees'
withholding, social security and unemployment taxes imposed by the United
States, any state, locality or any foreign country, or by any other taxing
authority, which have or may become due or payable by EXTECH, and all interest
and penalties thereon, whether disputed or not, have been paid in full or
adequately provided for by reserves shown in its Books and Records; all deposits
required by law to be made by EXTECH or with respect to estimated income,
franchise and employees' withholding taxes have been duly made; and all tax
returns, including estimated tax returns, required to be filed have been duly
and timely filed. No extension of time for the assessment of deficiencies for
any year is in effect. No deficiency notice is proposed, or to the knowledge of
EXTECH, threatened against EXTECH.
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4.10 Ownership of Assets; Interest in Assets. EXTECH owns outright or
indirectly, and has good and marketable title to, directly or indirectly, all of
its respective assets (including all assets reflected in the EXTECH Balance
Sheet, except as the same may have been disposed of in the ordinary and usual
course of business consistent with past practice since the EXTECH Balance Sheet
Date), free and clear of all Liens. The assets of EXTECH are sufficient to
permit it to conduct its business as now conducted. There are no Contracts with
any Person with respect to the acquisition of any of the assets of EXTECH or any
rights or interests therein.
4.11 Insurance. Schedule 4.11 attached hereto sets forth a true and complete
list and brief description of all policies of fire, liability and other forms of
insurance held by EXTECH. Except as set forth in Schedule 4.11, such policies
are valid, outstanding and enforceable policies, as to which premiums have been
paid currently, are with reputable insurers believed by EXTECH to be financially
sound and are consistent with the practices of similar concerns engaged in
substantially similar operations as those currently conducted by EXTECH. Except
as set forth in Schedule 4.11, there exists no state of facts, and no event has
occurred, which might reasonably (i) form the basis for any claim against EXTECH
not fully covered by insurance for liability on account of any express or
implied warranty or tortious omission or commission, or (ii) result in any
material increase in insurance premiums.
4.12 Litigation; Compliance with Law. Except as described in the SEC Report or
Schedule 4.12 attached hereto, there are no Actions relating to EXTECH or any of
its assets or business pending or, to the knowledge of EXTECH, threatened, or
any order, injunction, award or decree outstanding, against EXTECH or against or
relating to any of its assets or business; and there exists no basis for any
such Action which would have a Material Adverse Effect. EXTECH is not in
violation of any law, regulation, ordinance, order, injunction, decree, award,
or other requirement of any governmental or other regulatory body, court or
arbitrator relating to its assets or business, the violation of which would have
a Material Adverse Effect.
4.13 Real Property. The SEC Report sets forth a brief description of all real
properties which are leased to EXTECH and the terms of the respective leases,
including the identity of the lessor, the rental rate and other charges, and the
term of the lease. EXTECH does not own outright the fee simple title in and to
any real property. The real property leases described in Schedule 4.13 that
relate to the leased properties described therein are in full force and effect
and all amounts payable thereunder have been paid. All uses of such real
properties by EXTECH conform in all material respects to the terms of the leases
relating thereto and conform in all material respects to all applicable building
and zoning ordinances, laws and regulations. None of such leases may be expected
to result in the expenditure of material sums for the restoration of the
premises upon the expiration of their respective terms.
4.14 Agreements and Obligations; Performance. Except as listed and briefly
described in Schedule 4.14 attached hereto (the "Listed Agreements") or listed
in the SEC Report, EXTECH is not a party to, or bound by, any: (i) Contract
which involves aggregate payments or receipts in excess of $5,000 that cannot be
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terminated at will without penalty or premium or any continuing Liability; (ii)
Contract of any kind with any officer, director or shareholder of EXTECH; (iii)
Contract which is violation of applicable law; (iv) Contract for the purchase,
sale or lease of any materials, products, supplies or services which contains,
or which commits or will commit it for, a fixed term; (v) Contract of employment
not terminable at will without penalty or premium or any continuing Liability;
(vi) deferred compensation, bonus or incentive plan or Contract not cancelable
at will without penalty or premium or any continuing obligation or liability;
(vii) management or consulting Contract not terminable at will without penalty
or premium or any continuing Liability; (viii) except as set forth in Schedule
4.13, lease for real or personal property; (ix) license or royalty Contract; (x)
Contract relating to indebtedness for borrowed money; (xi) union or other
collective bargaining Contract; (xii) Contract which, by its terms, requires the
consent of any party thereto to the consummation of the transactions
contemplated hereby; (xiii) Contract containing covenants limiting the freedom
of EXTECH or any officer or employee thereof to engage or compete in any line of
business or with any Person in any geographical area; (xiv) Contract or option
relating to the acquisition or sale of any business; (xv) voting agreement or
similar Contract; (xvi) option for the purchase of any asset, tangible or
intangible; or (xvii) franchise, license or advertising Contract; (xviii)
Contract with the United States government, any state, local or foreign
government or any agency or department thereof; (xix) other Contract which
materially affects any of its assets or business, whether directly or
indirectly, or which was entered into other than in the ordinary and usual
course of business consistent with past practice. A true and correct copy of
each of the written Listed Agreements has been delivered, or made available, to
the Shareholders. EXTECH has in all material respects performed all obligations
required to be performed by it to date under all of the Listed Agreements, is
not in Default under any of the Listed Agreements and has received no notice of
any dispute, Default or alleged Default thereunder which has not heretofore been
cured or which notice has not heretofore been withdrawn. EXTECH does not know of
any Default under any of the Listed Agreements by any other party thereto or by
any other Person bound thereunder.
4.15 Condition of Assets. Except as set forth on Schedule 4.15 attached hereto,
all machinery, equipment, vehicles and other assets used by EXTECH in the
conduct of its business are in good operating condition, ordinary wear and tear
excepted.
4.16 Permits and Licenses. Schedule 4.16 attached hereto sets forth a true and
complete list of all Permits from all Bodies held by EXTECH. EXTECH has all
Permits of all Bodies required to carry on its business as presently conducted
and to offer and sell its products and services; all such Permits are in full
force and effect, and, to the knowledge of EXTECH, no suspension or cancellation
of any of such Permits is threatened; and EXTECH is in compliance in all
material respects with all requirements, standards and procedures of the Bodies
which have issued such Permits. Except as set forth on Schedule 4.16, no notice
to, declaration, filing or registration with, or Permit from, any Body or any
other Person is required to be made or obtained by EXTECH in connection with the
execution, delivery or performance of this Agreement and the consummation of the
transactions contemplated hereby.
4.17 Occupational Heath and Safety and Environmental Matters. The operations of
EXTECH's business do not require, and EXTECH does not have, any Permits from any
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Bodies relating to occupational health and safety or environmental matters to
lawfully conduct its business. There is no litigation, investigation or other
proceeding pending or, to the knowledge of EXTECH, threatened or known to be
contemplated by any Body in respect of or relating to EXTECH's business or the
assets of EXTECH with respect to occupational health and safety or environmental
matters. All operations of EXTECH's business have been conducted in compliance
with all, and EXTECH is not liable in any respect for any violation of any,
applicable federal, state or local laws or regulations pertaining to
occupational health and safety and environmental matters, including, without
limitation, those relating to the emission, discharge, storage, release or
disposal of Materials of Environmental Concern into ambient air, surface water,
ground water or land surface or subsurface strata or otherwise relating to the
manufacture, processing, distribution, use, handling, disposal or transport of
Materials of Environmental Concern. EXTECH has not received any notice of a
possible claim or citation against or in respect of any real property leased by
EXTECH, or with regard to its assets or business, relating to occupational
health and safety or environmental matters and EXTECH is not aware of any basis
for any such Action.
4.18 Intellectual Property. Schedule 4.18 sets forth a true and complete list
and brief description of all Proprietary Rights which are owned by EXTECH or in
which, or with regard to which, it has any right or interest (including, without
limitation, each application number, serial number or registration number, the
class of goods or services covered and the expiration date for each country in
which Intellectual Property has been registered). Except as set forth on
Schedule 4.18, no other Person has any proprietary or other interest in any such
Proprietary Rights and EXTECH is not a party to or bound by any Contract
requiring the payment to any Person of any royalty. EXTECH is not infringing
upon any Proprietary Rights or otherwise is violating the rights of any third
party with respect thereto, and no proceedings have been instituted, and no
claim has been received by EXTECH, and EXTECH is not aware of any claim,
alleging any such violation. There are no pending applications with regard to
any Proprietary Right. EXTECH has taken all reasonable and prudent steps to
protect the Proprietary Rights from infringement by any other Person. No other
Person (i) has the right to use any Trademark of EXTECH either in identical form
or in such near resemblance thereto as to be likely, when applied to the goods
or services of any such Person, to cause confusion with such Trademarks or to
cause a mistake or to deceive, (ii) has notified EXTECH that it is claiming any
ownership of or right to use any Proprietary Rights, or (iii) to the best of
EXTECH's knowledge, is infringing upon any Proprietary Rights in any way.
4.19 Compensation Information. Schedule 4.19 attached hereto contains a true and
complete list of the names and current salary rates of, bonus commitments to,
and other compensatory arrangements with, all officers and other persons
employed and/or retained by EXTECH.
4.20 Employee Benefit Plans.
(a) Schedules 4.20 (a), (b) and (c) attached hereto list all of the
"pension" and "welfare" benefit plans (within the respective meanings of
sections 3(2) and 3(1) of ERISA), maintained by EXTECH, or to which it makes
employer contributions with respect to its employees, a complete and correct
copy of each of which has been delivered to the Shareholders. There are no
vested and unfunded benefits under any such plans.
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(b) All of the pension and profit sharing plans maintained by EXTECH
(herein collectively referred to as the "Pension Plans") are listed in Schedule
4.20(a). Each of the Pension Plans has received a favorable determination letter
as to its qualification under section 401(a) of the Code (including, but not
limited to, amendments made by ERISA), nothing has occurred with respect to any
such Pension Plan which would cause the loss of such qualification, and EXTECH
has delivered to the Shareholders true and correct copies of all such
determination letters.
(c) All of the pension plans not maintained by EXTECH but to which it makes
employer contributions with respect to its employees (herein collectively
referred to as the "Other Pension Plans") are listed in Schedule 4.20(b). Each
of the Other Pension Plans is a "multiemployer plan" (within the meaning of
section 3(37) of ERISA), but EXTECH is not a "substantial employer" (within the
meaning of section 4001(a)(2) of ERISA) with respect to any of the Other Pension
Plans.
(d) All contributions required by law or required under the Pension Plans
with respect to plan years ended prior to the Closing Date have been made by
EXTECH. With regard to the current plan year of each of the Other Pension Plans,
all contributions required to meet the employer contribution obligations of
EXTECH, under section 412 of the Code, Part 3 of Title I(B) of ERISA, such Other
Pension Plan or any applicable collective bargaining agreement, with respect to
that portion of the current plan year ending on the Closing Date, shall have
been made on or prior to the Closing Date by EXTECH.
(e) No Pension Plan or related trust has terminated, and no "reportable
event" (within the meaning of section 4043(b) of ERISA) has occurred with
respect to any of the Pension Plans or the participation of EXTECH in any of the
Other Pension Plans, other than the transactions contemplated by this Agreement,
since the effective date of ERISA.
(f) None of the Pension Plans which are subject to the provisions of
section 412 of the Code or Part 3 of Title I(B) of ERISA or their related trusts
has incurred any "accumulated funding deficiency" (within the meanings of
section 412(a) of the Code and section 302 of ERISA) since the effective date of
ERISA.
(g) EXTECH has not incurred any Liability (except for required premium
payments, which premium payments have been made for plan years ended prior to
the Closing Date, to the Pension Benefit Guaranty Corporation), with respect to
the Pension Plans.
(h) All of the welfare plans maintained by EXTECH or to which it makes
employer contributions with respect to its employees (herein collectively
referred to as the "Welfare Plans" and together with the Pension Plans and Other
Pension Plans, the "Pension and Welfare Plans")) are listed in Schedule 4.20(c).
There are no Actions pending or, to the knowledge of EXTECH, threatened, and
EXTECH does not have any knowledge of any facts which could give rise to any
Actions against any of the Pension Plans, or (with respect to the participation
of EXTECH therein) against any of the Other Pension Plans or Welfare Plans, or
against EXTECH with respect thereto.
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(i) EXTECH has satisfied in all material respects all reporting and
disclosure requirements applicable to it under ERISA, and the Department of
Labor and Internal Revenue Service regulations promulgated thereunder, with
respect to all of the Pension and Welfare Plans, and EXTECH has delivered to the
Shareholders true and complete copies of the most recently filed and disclosed
Forms EBS-1, Forms 5500 and 5500-C (with exhibits), 1976 "ERISA Notices" and
summary plan description for the Pension and Welfare Plans.
(j) None of the Pension and Welfare Plans or any of their related trusts,
or EXTECH, or any trustee, administrator or other "party in interest" or
"disqualified person" (within the meaning of section 3(14) of ERISA or section
4975(e)(2) of the Code, respectively) with respect to the Pension or Welfare
Plans, has engaged in any "prohibited transaction" (within the meaning of
section 408 of ERISA or section 4975(c)(23) or (d) of the Code), with respect to
the participation of EXTECH therein, which could subject any of the Pension or
Welfare Plans or related trusts, or any trustee, administrator or other
fiduciary of any Plan, or EXTECH, or any other party dealing with the Pension or
Welfare Plans, to the penalties or excise tax imposed on prohibited transactions
by section 502(i) of ERISA or section 4975 of the Code.
(k) The Trustees of each of the Pension Plans have completed their required
annual accountings for the most recent plan years, such accountings accurately
reflect the financial positions of the Pension Plans as at such date, and true
and complete copies of the Trustees' reports or schedules of such accountings
have been delivered to the Shareholders.
4.21 Brokers. EXTECH has not engaged, consented to, or authorized any broker,
finder, investment banker or other third party to act on its behalf, directly or
indirectly, as a broker or finder in connection with the transactions
contemplated by this Agreement.
4.22 Employment Relations. (a) EXTECH is in compliance with all Federal, state
and other applicable laws, rules and regulations respecting employment and
employment practices, terms and conditions of employment and wages and hours,
and has not engaged in any unfair labor practice which, in any of the foregoing
cases, could have a Material Adverse Effect; (b) there is not pending, or, to
the knowledge of EXTECH, threatened, any unfair labor practice charge or
complaint against EXTECH by or before the National Labor Relations Board or any
comparable state agency or authority; (c) there is no labor strike, dispute,
slowdown or stoppage pending or, to the knowledge of EXTECH, threatened against
or involving EXTECH; (d) EXTECH is not aware of any union organization effort
respecting the employees of EXTECH; (e) no grievance which might have a Material
Adverse Effect on EXTECH or on the conduct of its business, nor any arbitration
proceeding arising out of or under any collective bargaining agreement, is
pending and no claim therefor has been asserted; (f) no litigation, arbitration,
administrative proceeding or governmental investigation is now pending, and, to
the knowledge of EXTECH, no Person has made any claim or has threatened
litigation, arbitration, administrative proceeding or governmental investigation
against, arising out of any law relating to discrimination against employees or
employment practices; (g) no collective bargaining agreement is currently being
negotiated by EXTECH; and (h) EXTECH has not experienced any material labor
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difficulties during the last three (3) years. There has not been, and EXTECH
does not anticipate, any material adverse change in relations with employees of
EXTECH as a result of the announcement of the transactions contemplated by this
Agreement.
4.23 Payments. EXTECH has not, directly or indirectly, paid or delivered any
fee, commission or other sum of money or item or property, however
characterized, to any finder, agent, client, customer, supplier, government
official or other Person, in the United States or any other country, which is
illegal under any federal, state or local laws of the United States (including,
without limitation, the U.S. Foreign Corrupt Practices Act).
4.24 Books and Records. EXTECH has made and kept (and given the Shareholders
access to) Books and Records and accounts, which, in reasonable detail,
accurately and fairly reflect the activities of its business. EXTECH has not
engaged in any material transaction, maintained any bank account or used any
corporate funds in connection with its business except for transactions, bank
accounts and funds which have been and are reflected in the normally maintained
books and records of EXTECH.
4.25 Americans with Disabilities Act Compliance. All facilities owned, leased or
used by EXTECH (collectively "Facilities") have been constructed and maintained
in full compliance with the ADA. EXTECH has not received any notice to the
effect, or otherwise been advised, that any such Facilities are not in
compliance with the ADA. EXTECH has no reason to anticipate that any existing
circumstances at any of the Facilities are likely to result in violation of the
ADA.
4.26 Proxy Statement. The Proxy Statement (excluding information to be furnished
by the Shareholders or any DCAP Entity to EXTECH for inclusion therein), when
furnished to the Company's stockholders, and at all times to and including the
time of the stockholders' meeting convened for the purpose of obtaining
Stockholder Approval, will not contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein
contained not misleading.
4.27 Untrue or Omitted Facts. No representation, warranty or statement by EXTECH
in this Agreement contains any untrue statement of a material fact, or omits to
state a fact necessary in order to make such representations, warranties or
statements not materially misleading. Without limiting the generality of the
foregoing, there is no fact known to EXTECH that has had, or which may be
reasonably expected to have, a Material Adverse Effect that has not been
disclosed in this Agreement.
ARTICLE V
PRE-CLOSING COVENANTS
5.1 Shareholder Covenants. The Shareholders, jointly and severally, hereby
covenant that, from and after the date hereof and until the Closing or earlier
termination of this Agreement:
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(a) Access. The Shareholders shall cause the DCAP Entities to afford to the
officers, attorneys, accountants and other authorized representatives of EXTECH
free and full access, during regular business hours and upon reasonable notice,
to all of their Books and Records, personnel and properties so that EXTECH, at
its own expense, may have full opportunity to make such review, examination and
investigation as EXTECH may desire of the DCAP Entities and the DCAP Business.
The Shareholders will cause the employees, accountants, attorneys and other
agents and representatives of the DCAP Entities to cooperate fully with said
review, examination and investigation and to make full disclosure to EXTECH and
its representatives of all material facts affecting the DCAP Business. The
Shareholders acknowledge and agree that no review, examination or investigation
heretofore or hereafter undertaken by EXTECH or its representatives shall limit
or affect any representation or warranty made by the Shareholders in, or
otherwise relieve the Shareholders from any liability under, this Agreement.
(b) Conduct of Business. The Shareholders shall cause the DCAP Entities to
conduct their business only in the ordinary and usual course and make no change
in any of its business practices and policies without the prior written consent
of EXTECH. Without limiting the generality of the foregoing, and except as
otherwise expressly provided in this Agreement, prior to the Closing, the
Shareholders shall not cause or permit any DCAP Entity, without the prior
written consent of EXTECH, to:
(i) amend its Certificate of Incorporation, By-Laws or other
organizational document;
(ii) enter into, adopt or amend any bonus, profit sharing,
compensation, severance, termination, stock option, stock appreciation
right, restricted stock, performance unit, stock equivalent, stock
purchase, pension, retirement, deferred compensation, employment, severance
or other employee benefit Contract, trust, plan, fund or other arrangement
for the benefit or welfare of any director, officer, manager or employee,
or (except for normal increases in the ordinary course of business
consistent with past practice that, in the aggregate, do not result in a
material increase in benefits or compensation expense to the DCAP Entity)
increase in any manner the compensation or fringe benefits of any director,
officer, manager or employee or pay any benefit not required by any plan
and arrangement as in effect as of the date hereof;
(iii) acquire, sell, lease or dispose of any assets outside the
ordinary course of business consistent with past practice or any assets
which in the aggregate are material to the DCAP Entity;
(iv) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof;
(v) take any other action outside the ordinary course of business
consistent with past practice; or
EXTECH CORPORATION
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(vi) adopt any resolution, or enter into or amend any Contract, with
respect to any of the foregoing.
(c) Insurance. The Shareholders shall cause the DCAP Entities to maintain
in force the insurance policies listed in Schedule 4.11, except to the extent
that they may be replaced with equivalent policies at the same or lower rates.
If, in EXTECH's opinion, additional coverage is necessary to keep adequately
insured the DCAP Entities' properties, the Shareholders shall cause the DCAP
Entities to obtain (to the extent available) such additional insurance, at
EXTECH's expense, from financially sound and reputable insurers for a period
ending no sooner than the close of business on the Closing Date; provided that,
if the Closing shall fail to occur, the Shareholders shall cause the DCAP
Entities to promptly cancel such policies for additional insurance and return to
EXTECH any refunds of premiums paid by EXTECH on account thereof.
(d) Liabilities. The Shareholders shall not cause or permit any DCAP Entity
to incur any Liability, except for those incurred in the ordinary and usual
course of its business consistent with past practice, without the prior written
consent of EXTECH; nor shall the Shareholders cause or permit any DCAP Entity to
pay any Liability other than: (i) the foregoing Liabilities; (ii) Liabilities
set forth in the Balance Sheet; (iii) Liabilities arising after the Balance
Sheet Date in the ordinary and usual course of business consistent with past
practice; and (iv) Liabilities with respect to which the DCAP Entity shall have
received the prior written consent of EXTECH.
(e) Preservation of Business. The Shareholders shall cause the DCAP
Entities to use their best efforts to preserve intact their business
organization and keep available the services of their present officers,
managers, employees and consultants, maintain good relationships with customers
and suppliers and preserve their goodwill.
(f) No Breach.
(i) The Shareholders will each (A) use his best efforts to assure that
all of his representations and warranties contained herein are true and
correct as of the Closing as if repeated at and as of such time, that no
Default shall occur with respect to any of his covenants, representations
or warranties contained herein that has not been cured by the Closing and
that all conditions to EXTECH's obligation to enter into and complete the
Closing are satisfied in a timely manner; (B) not voluntarily take any
action or do anything which will cause a Default respecting such covenants,
representations or warranties or would impede the satisfaction of such
conditions; and (C) promptly notify EXTECH of any event or fact which
represents or is likely to cause such a Default or result in such an
impediment.
(ii) Without limiting the generality of the foregoing, each of the
Shareholders agrees to use his best efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things reasonably
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
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Agreement, including, without limitation, taking such actions as reasonably
may be required to have the Proxy Statement cleared by the SEC as promptly
as practicable after filing.
(g) Consents. Promptly following the execution of this Agreement, each of
the Shareholders will use his best efforts, and will cause the DCAP Entities to
use their best efforts, to obtain consents of all Bodies and other Persons
necessary for the consummation of the transactions contemplated by this
Agreement.
(h) Unaudited Financial Statements. The Shareholders will cause the DCAP
Entities to provide EXTECH with such unaudited financial statements of, and
other financial information with respect to, the DCAP Entities up to and
including the Closing Date as EXTECH may reasonably request.
(i) No Negotiations. For so long as this Agreement shall remain in effect,
neither of the Shareholders will, nor will either of them cause or permit any
DCAP Entity to, directly or indirectly, (a) solicit or initiate discussions or
engage in negotiations with any Person ("Potential Offeror") (whether such
negotiations are initiated by them or otherwise), other than EXTECH, with
respect to the possible acquisition, financing or change of control of any DCAP
Entity, whether by way of merger, acquisition of stock, acquisition of assets,
or otherwise (a "Potential Transaction"); (b) provide any information with
respect to any DCAP Entity or any of their respective businesses or assets to
any Person, other than EXTECH, in connection with a Potential Transaction; (c)
enter into any Contract with any Person, other than EXTECH, concerning or
relating to a Potential Transaction; or (d) act in any way in response to a
Potential Transaction. If the Shareholders, the DCAP Entities, or any of them
receives any unsolicited offer or proposal to enter into negotiations relating
to a Potential Transaction, they shall immediately notify EXTECH of such fact
and shall return any such written offer to such Potential Offeror.
5.2 EXTECH Covenants. EXTECH hereby covenants that, from and after the date
hereof and until the Closing or earlier termination of this Agreement:
(a) Access. EXTECH shall afford to the officers, attorneys, accountants and
other authorized representatives of the Shareholders free and full access,
during regular business hours and upon reasonable notice, to all of its Books
and Records, personnel and properties so that the Shareholders, at their own
expense, may have full opportunity to make such review, examination and
investigation as they may desire of EXTECH and its business. EXTECH will cause
its employees, accountants, attorneys and other agents and representatives to
cooperate fully with said review, examination and investigation and to make full
disclosure to the Shareholders and their representatives of all material facts
affecting its business. EXTECH acknowledges and agrees that no review,
examination or investigation heretofore or hereafter undertaken by the
Shareholders or their representatives shall limit or affect any representation
or warranty made by EXTECH in, or otherwise relieve EXTECH from any liability
under, this Agreement.
EXTECH CORPORATION
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(b) Conduct of Business. EXTECH will conduct its business only in the
ordinary and usual course and make no change in any of its business practices
and policies without the prior written consent of the Shareholders except that
EXTECH may, without such consent, take such actions with regard to its
subsidiary, IAH, Inc. ("IAH"), and/or the International Airport Hotel,
including, without limitation, the settlement of the pending lawsuit between the
Puerto Rico Ports Authority and IAH (unless the settlement provides for the
payment of monetary damages by IAH) and the sale, lease or other disposition of
the assets of IAH as it, in its sole discretion, deems necessary or proper.
Without limiting the generality of the foregoing, and except as otherwise
expressly provided in this Agreement, prior to the Closing, EXTECH will not,
without the prior written consent of the Shareholders:
(i) amend its Certificate of Incorporation or By-Laws (except that it
may amend it By-Laws to adopt provisions that are contemplated herein to be
included as an amendment to EXTECH's Certificate of Incorporation and
subject to Stockholder Approval);
(ii) enter into, adopt or amend any bonus, profit sharing,
compensation, severance, termination, stock option, stock appreciation
right, restricted stock, performance unit, stock equivalent, stock
purchase, pension, retirement, deferred compensation, employment, severance
or other employee benefit Contract, trust, plan, fund or other arrangement
for the benefit or welfare of any director, officer or employee, or (except
for normal increases in the ordinary course of business consistent with
past practice that, in the aggregate, do not result in a material increase
in benefits or compensation expense to EXTECH) increase in any manner the
compensation or fringe benefits of any director, officer or employee or pay
any benefit not required by any plan and arrangement as in effect as of the
date hereof;
(iii) acquire, sell, lease or dispose of any assets outside the
ordinary course of business consistent with past practice or any assets
which in the aggregate are material to EXTECH;
(iv) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or
division thereof;
(v) take any other action outside the ordinary course of business
consistent with past practice; or
(vi) adopt any resolution, or enter into or amend any Contract, with
respect to any of the foregoing.
(c) Preservation of Business. Except as provided for in Section 5.2(b)
hereof, EXTECH will use its best efforts to preserve intact its business
organization and keep available the services of its present officers, employees
and consultants, maintain good relationships with customers and suppliers and
preserve its goodwill.
EXTECH CORPORATION
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(d) No Breach.
(i) EXTECH will (A) use its best efforts to assure that all of its
representations and warranties contained herein are true and correct as of
the Closing as if repeated at and as of such time, that no Default shall
occur with respect to any of its covenants, representations or warranties
contained herein that has not been cured by the Closing and that all
conditions to the Shareholders' obligation to enter into and complete the
Closing are satisfied in a timely manner; (B) not voluntarily take any
action or do anything which will cause a Default respecting such covenants,
representations or warranties or would impede the satisfaction of such
conditions; and (C) promptly notify the Shareholders of any event or fact
which represents or is likely to cause such a Default or result in such an
impediment.
(ii) Without limiting the generality of the foregoing, EXTECH agrees
to use its best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, all things reasonably necessary, proper or
advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, including,
without limitation, taking such actions as reasonably may be required to
have the Proxy Statement cleared by the SEC as promptly as practicable
after filing.
(e) Consents; Proxy Statement. Promptly following the execution of this
Agreement, EXTECH will use its best efforts to obtain consents of all Bodies and
other Persons necessary for the consummation of the transactions contemplated by
this Agreement. EXTECH will furnish the Shareholders with a copy of the Proxy
Statement for their review and comment at least two (2) days prior to the filing
thereof with the SEC.
ARTICLE VI
ACQUISITION OF SHARES
6.1 Investment Intent; Qualification as Purchaser.
(a) Certilman, Haft and each Shareholder represents and warrants that the
particular EXTECH Shares and Sterling Foster Shares to be acquired pursuant to
the terms hereof are being acquired for his own account, for investment purposes
and not with a view to the distribution thereof. Certilman, Haft and each
Shareholder each agrees that he will not sell, assign, transfer, encumber or
otherwise dispose of any of the particular EXTECH Shares or Sterling Foster
Shares unless (i) a registration statement under the Securities Act with respect
thereto is in effect and the prospectus included therein meets the requirements
of Section 10 of the Securities Act, or (ii) EXTECH has received a written
opinion of its counsel that, after an investigation of the relevant facts, such
counsel is of the opinion that such proposed sale, assignment, transfer,
encumbrance or disposition does not require registration under the Securities
Act.
EXTECH CORPORATION
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(b) Certilman, Haft and each Shareholder understands that none of the
EXTECH Shares or Sterling Foster Shares are being registered under the
Securities Act and must be held indefinitely unless they are subsequently
registered thereunder or an exemption from such registration is available.
(c) Certilman, Haft and each Shareholder represents and warrants that he
and his purchaser representative, if any, have reviewed the SEC Report.
Certilman, Haft and each Shareholder represents and warrants further that (i) he
is either an "accredited investor," as such term is defined in Rule 501(a)
promulgated by the SEC under the Securities Act, or that he, alone or with his
purchaser representative, if any, has such knowledge and experience in financial
and business matters that he is capable of evaluating the merits and risks of
the acquisition of the particular EXTECH Shares and Sterling Foster Shares
contemplated hereby; (ii) he is able to bear the economic risk of an investment
in the particular EXTECH Shares and Sterling Foster Shares, including, without
limitation, the risk of the loss of part or all of his investment and the
inability to sell or transfer the particular EXTECH Shares and Sterling Foster
Shares for an indefinite period of time; (iii) he has adequate means of
providing for current needs and contingencies and has no need for liquidity in
his investment in the particular EXTECH Shares and Sterling Foster Shares; and
(iv) he does not have an overall commitment to investments which are not readily
marketable that is excessive in proportion to his net worth and an investment in
the particular EXTECH Shares and Sterling Foster Shares will not cause such
overall commitment to become excessive. Certilman, Haft and each Shareholder
will execute and deliver to EXTECH such documents as EXTECH may reasonably
request in order to confirm the accuracy of the foregoing.
6.2 Restrictive Legend. The EXTECH Shares and Sterling Foster Shares to be
issued or transferred, as the case may be, to Certilman, Haft and the
Shareholders may not be sold, assigned, transferred, encumbered or disposed of
unless they are registered under the Securities Act or unless an exemption from
such registration is available. Accordingly, the following restrictive legend
will be placed on any instrument, certificate or other document evidencing the
EXTECH Shares and Sterling Foster Shares:
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended. These shares have been
acquired for investment and not for distribution or resale. They may
not be sold, assigned, mortgaged, pledged, hypothecated or otherwise
transferred or disposed of without an effective registration
statement for such shares under the Securities Act of 1933, as
amended or an opinion of counsel for the Company that registration is
not required under such Act. The shares represented by this
certificate are held subject to the terms and conditions of a certain
Agreement, dated May __, 1998, among the Company, Morton L.
Certilman, Jay M. Haft, Kevin Lang and Abraham Weinzimer, a copy of
which is available at the offices of the Company."
EXTECH CORPORATION
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6.3 Certain Risk Factors. Certilman, Haft and each of the Shareholders
acknowledges that there are significant risks relating to the acquisition of the
EXTECH Shares and Sterling Foster Shares including, without limitation, as a
result of the matters described in the SEC Report.
ARTICLE VII
CONDITIONS PRECEDENT TO THE
OBLIGATION OF EXTECH TO CLOSE
The obligation of EXTECH to consummate the transactions contemplated hereby
is subject to the fulfillment, prior to or at the Closing, of each of the
following conditions, any one or more of which may be waived by EXTECH (except
when the fulfillment of such condition is a requirement of law):
7.1 Representations and Warranties. All representations and warranties of the
Shareholders contained in this Agreement and in any written statement (including
financial statements), exhibit, certificate, schedule or other document
delivered pursuant hereto or in connection with the transactions contemplated
hereby shall be true and correct in all material respects (except to the extent
that any such representation and warranty is already qualified as to
materiality, in which case such representation and warranty shall be true and
correct without further qualification) as at the Closing Date, as if made at the
Closing and as of the Closing Date.
7.2 Covenants. Each of the Shareholders shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by him prior to or at the Closing.
7.3 Certificate. EXTECH shall have received a certificate, dated the Closing
Date, signed by each of the Shareholders, as to the satisfaction of the
conditions contained in Sections 7.1 and 7.2 hereof.
7.4 Shares; Purchase Price. The Shareholders shall have tendered to EXTECH the
Shares and their respective EXTECH Additional Shares Purchase Price in
accordance with the provisions of Sections 2.3.2 and 2.4.1 hereof, respectively.
7.5 Sterling Foster Purchases. The Sterling Foster Purchases shall have occurred
concurrently with the Closing as contemplated by Section 2.4.2 hereof.
7.6 Stockholder Approval. Stockholder Approval shall have occurred.
7.7 DCAP Financial Statements. EXTECH shall have received such historical
audited and unaudited financial statements for the DCAP Entities as are required
by the rules and regulations of the SEC to be included by EXTECH in a Current
Report on Form 8-K with regard to the transactions contemplated hereby,
including, without limitation, with respect to the audited financial statements,
EXTECH CORPORATION
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an unqualified report thereon by certified public accountants who are
"independent" within the meaning ascribed to such term in Regulation S-X,
promulgated by the SEC.
7.8 Employment Agreements. Each of the Shareholders shall have executed and
tendered to EXTECH an employment agreement in, or substantially in, the form
attached hereto as Exhibit 7.8 (the "Employment Agreement").
7.9 Restrictive Covenant Agreements. Each of the Shareholders shall have
executed and tendered to EXTECH a restrictive covenant agreement in, or
substantially in, the form attached hereto as Exhibit 7.9 (the "Restrictive
Covenant Agreement").
7.10 Fairness Opinion. EXTECH shall have received an opinion from an investment
banking firm satisfactory to it to the effect that the transactions contemplated
hereby are fair, from a financial viewpoint, to the stockholders of EXTECH.
7.11 Cold Comfort Letter. EXTECH shall have received a "cold comfort" letter
from Deutsch Marin & Company, dated the Closing Date, in form and substance
reasonably satisfactory to EXTECH (the "Cold Comfort Letter").
7.12 Closing Notes; Closing Pledge Agreements. The Shareholders shall have
executed and tendered to EXTECH the Closing Notes and the Closing Pledge
Agreements.
7.13 Opinions of Counsel. EXTECH shall have received an opinion of counsel,
dated the Closing Date, from (a) Ruskin Moscou, Evans & Faltischek, P.C.,
counsel to the Shareholders and the DCAP Entities, with respect to the
representations and warranties set forth in Sections 3.1, 3.4 and 3.21 hereof
and (b) Harold L. Kestenbaum, P.C. in, or substantially in, the form attached
hereto as Exhibit 7.13 (collectively, the "DCAP Opinions").
7.14 Buy Out Agreement. Each of the Shareholders shall have executed and
tendered to EXTECH a death buy out agreement in, or substantially in, the form
attached hereto as Exhibit 7.14 (the "Buy Out Agreement").
7.15 Size of Boards; Election as Members. The size of the Board of Directors of
each of the Affiliated Companies shall have been fixed at four (4) and Certilman
and Haft shall have been elected as members thereof.
7.16 No Actions. No Action shall have been instituted and be continuing before a
court or before or by Body, or shall have been threatened and be unresolved, to
restrain or prevent, or obtain any material amount of damages in respect of, the
carrying out of the transactions contemplated hereby, or which might materially
affect the right of EXTECH to own the Shares after the Closing Date, or which
might have a materially adverse effect thereon.
EXTECH CORPORATION
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7.17 Consents; Licenses and Permits. The Shareholders and EXTECH shall have
obtained all consents, licenses and other Permits of Bodies and other Persons
necessary for the performance by each of them of all of their respective
obligations under this Agreement, including, without limitation, the transfer of
the Shares as contemplated hereby, and such other agreements, consents and
waivers, if any, including, without limitation, the Required Waivers, to prevent
the occurrence of a Default under any Contract to which any DCAP Entity or
either Shareholder is a party or is otherwise bound or to otherwise confirm the
representations set forth in Section 3.21 hereof without qualification.
7.18 Sections 4(2) and 4(1) Compliance. Each of the Shareholders shall have
delivered to EXTECH evidence reasonably satisfactory to EXTECH that his
representations set forth in Article VI hereof are true and correct.
7.19 Actions. All actions necessary to authorize the execution, delivery and
performance of this Agreement by the Shareholders and the consummation of the
transactions contemplated hereby shall have been duly and validly taken and the
Shareholders shall have full power and right to consummate the transactions
contemplated by this Agreement.
7.20 Additional Documents. The Shareholders shall have delivered all such
certified resolutions, certificates and documents with respect to the DCAP
Entities and the transactions contemplated hereby as EXTECH or its counsel may
have reasonably requested.
Notwithstanding the provisions of Sections 7.4, 7.16 and 7.17 hereof, in
the event of the institution of an Action with respect to one or more of the
DCAP Entities and/or the failure to obtain any consent, license or other Permit
of any Body or other Person with respect to one or more of the DCAP Entities,
then, subject to the other conditions hereof, EXTECH shall be obligated to
consummate the transactions contemplated hereby if the Shareholders notify it
that they are willing to exclude the affected DCAP Entity or DCAP Entities from
the purchase and sale contemplated hereby. In such event, the number of EXTECH
Acquisition Shares shall not be reduced; however, at the Closing, the
Shareholders and EXTECH shall enter into an agreement with respect to the
excluded DCAP Entity or DCAP Entities containing substantially the terms
provided for in Schedule 8 attached hereto.
ARTICLE VIII
CONDITIONS PRECEDENT TO THE OBLIGATION OF
THE SHAREHOLDERS TO CLOSE
The obligation of the Shareholders to consummate the transactions
contemplated hereby is subject to the fulfillment, prior to or at the Closing,
of each of the following conditions, any one or more of which may be waived by
the Shareholders (except when the fulfillment of such condition is a requirement
of law):
EXTECH CORPORATION
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8.1 Representations and Warranties. All representations and warranties of EXTECH
contained in this Agreement and in any written statement (including financial
statements), exhibit, certificate, schedule or other document delivered pursuant
hereto or in connection with the transactions contemplated hereby shall be true
and correct in all material respects (except to the extent that any such
representation and warranty is already qualified as to materiality, in which
case such representation and warranty shall be true and correct without further
qualification) as at the Closing Date, as if made at the Closing and as of the
Closing Date.
8.2 Covenants. EXTECH shall have performed and complied in all material respects
with all covenants and agreements required by this Agreement to be performed or
complied with by it prior to or at the Closing.
8.3 Certificate. The Shareholders shall have received a certificate, dated the
Closing Date, signed by the Chairman of the Board or President of EXTECH, as to
the satisfaction of the conditions contained in Sections 8.1 and 8.2 hereof.
8.4 EXTECH Shares. EXTECH shall have tendered to the Shareholders certificates
evidencing the respective EXTECH Acquisition Shares and EXTECH Additional Shares
in accordance with the provisions of Section 2.3.2 and 2.4.1 hereof,
respectively.
8.5 Sterling Foster Purchases. The Sterling Foster Purchases shall have occurred
concurrently with the Closing as contemplated by Section 2.4.2 hereof.
8.6 Stockholder Approval. Stockholder Approval shall have occurred with regard
to the matters set forth as (i), (ii)(a) and (iii) under the definition thereof.
8.7 Employment Agreements; Stock Option Agreements. EXTECH shall have executed
and tendered to the Shareholders the Employment Agreements and stock option
agreements in, or substantially in, the forms attached hereto as Exhibits 7.8
and 8.7 (the "Stock Option Agreements"), respectively.
8.8 Certilman and Haft Purchases. Certilman and Haft shall have acquired their
respective EXTECH Additional Shares in accordance with the provisions of Section
2.4.1 hereof.
8.9 Closing Loans. EXTECH shall have tendered to the Shareholders the Closing
Loans in accordance with the provisions of Section 2.5.2 hereof.
8.10 Size of Board and Committees; Election as Directors and Members. The size
of the Board of Directors of EXTECH and any Audit and Finance Committees thereof
shall have been fixed at four (4) and the Shareholders shall have been elected
as members thereof.
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8.11 Tax Opinion. The Shareholders shall have received an opinion of tax counsel
or other tax advisor to the effect that the receipt of the EXTECH Acquisition
Shares is not a taxable event to the Shareholders by reason of the provisions of
Section 351 of the Code.
8.12 Opinion of Counsel. The Shareholders shall have received an opinion of
counsel, dated the Closing Date, from Certilman Balin Adler & Hyman, LLP with
respect to the representations and warranties set forth in Sections 4.1, 4.4 and
4.6 hereof (the "EXTECH Opinion").
8.13 Buy Out Agreement. EXTECH shall have executed and tendered to the
Shareholders the Buy Out Agreement in, or substantially in, the form attached
hereto as Exhibit 7.14.
8.14 No Actions. No Action shall have been instituted and be continuing before a
court or before or by a Body, or shall have been threatened and be unresolved,
to restrain or prevent, or obtain any material amount of damages in respect of,
the carrying out of the transactions contemplated hereby, or which might
materially affect the right of the Shareholders to own their EXTECH Shares after
the Closing Date, or which might have a materially adverse effect thereon.
8.15 Consents; Licenses and Permits. The Shareholders and EXTECH shall have
obtained all consents, licenses and other Permits of Bodies and other Persons
necessary for the performance by them of all of their respective obligations
under this Agreement, including, without limitation, the issuance of the
respective EXTECH Shares to the Shareholders as contemplated hereby, and such
other consents, if any, to prevent the occurrence of a Default under any
Contract to which EXTECH is a party or is otherwise bound.
8.16 Corporate Actions. All actions necessary to authorize the execution,
delivery and performance of this Agreement by EXTECH and the consummation of the
transactions contemplated hereby shall have been duly and validly taken and
EXTECH shall have full power and right to consummate the transactions
contemplated by this Agreement.
8.17 Additional Documents. EXTECH shall have delivered all such certified
resolutions, certificates and documents with respect to EXTECH and the
transactions contemplated hereby as the Shareholders or their counsel may have
reasonably requested.
Notwithstanding the provisions of Sections 8.14 and 8.15 hereof, in the
event of the institution of an Action with respect to one or more of the DCAP
Entities and/or the failure to obtain any consent, license or other Permit of
any Body or other Person with respect to one or more of the DCAP Entities, then,
subject to the other conditions hereof, the Shareholders shall be obligated to
consummate the transactions contemplated hereby if EXTECH notifies them that it
is willing to exclude the affected DCAP Entity or DCAP Entities from the
purchase and sale contemplated hereby. In such event, the number of EXTECH
Acquisition Shares shall not be reduced; however, at the Closing, the
Shareholders and EXTECH shall enter into an agreement with respect to the
excluded DCAP Entity or DCAP Entities containing substantially the terms
provided for in Schedule 8 attached hereto.
EXTECH CORPORATION
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ARTICLE IX
CONDITIONS PRECEDENT TO THE
OBLIGATIONS OF CERTILMAN AND HAFT TO CLOSE
The obligation of Certilman and Haft to consummate the transactions
contemplated hereby is subject to the fulfillment, prior to at the Closing, of
each of the following conditions, any one or more of which may be waived by
Certilman and Haft (except when the fulfillment of such condition is a
requirement of law):
9.1 Shares/EXTECH Acquisition Shares. EXTECH shall have acquired the Shares in
consideration for the issuance of the EXTECH Acquisition Shares in accordance
with the provisions of Sections 2.1 and 2.2 hereof.
9.2 Sterling Foster Purchases. The Sterling Foster Purchases shall have occurred
concurrently with the Closing as contemplated by Section 2.4.2 hereof.
9.3 Stockholder Approval. Stockholder Approval shall have occurred.
9.4 EXTECH Additional Shares. EXTECH shall have tendered to Certilman and Haft
certificates evidencing their respective EXTECH Additional Shares in accordance
with the provisions of Section 2.4.1 hereof.
9.5 Shareholder Purchases. The Shareholders shall have acquired their respective
EXTECH Additional Shares in accordance with the provisions of Section 2.4.1
hereof.
9.6 Employment Agreements; Stock Option Agreements. EXTECH shall have executed
and tendered to Certilman and Haft Employment Agreements and Stock Option
Agreements in, or substantially in, the forms attached hereto as Exhibits 7.8
and 8.7, respectively.
9.7 No Actions. No Action shall have been instituted and be continuing before a
court or before or by a Body, or shall have been threatened and be unresolved,
to restrain or prevent, or obtain any material amount of damages in respect of,
the carrying out of the transactions contemplated hereby or which might
materially affect the right of Certilman and Haft to own their respective EXTECH
Additional Shares after the Closing Date, or which might have a materially
adverse effect thereon.
9.8 Corporate Actions. All actions necessary to authorize the execution,
delivery and performance of this Agreement by EXTECH and the consummation of the
transactions contemplated hereby shall have been duly and validly taken and
EXTECH shall have full power and right to consummate the transactions
contemplated by this Agreement.
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9.9 Additional Documents. EXTECH shall have delivered all such certified
resolutions, certificates and documents with respect to EXTECH and the
transactions contemplated hereby as Certilman and Haft or their counsel may have
reasonably requested.
ARTICLE X
CLOSING
10.1 Time and Location. The closing (the "Closing") provided for herein shall
take place at the offices of Certilman Balin Adler & Hyman, LLP, 90 Merrick
Avenue, East Meadow, New York 11554 at 10:00 A.M. on the business day following
Stockholder Approval or, if, as of such date, any party shall not be obligated
to close and shall not have waived such closing condition(s), subject to the
provisions of Article XIII hereof, on the business day after such later date as
such party or parties shall be obligated to close or shall have waived such
closing condition(s), or at such time and place as may be mutually agreed to by
the parties. Such date is referred to in this Agreement as the "Closing Date."
10.2 Items to be Delivered by the Shareholders. At the Closing, the Shareholders
will deliver or cause to be delivered to EXTECH:
(a) the certificate required by Section 7.3 hereof;
(b) certificates representing the Shares, duly endorsed or accompanied by
stock powers duly executed, together with evidence satisfactory to EXTECH of the
Shareholders' payment of all transfer taxes with respect thereto;
(c) the EXTECH Additional Shares Purchase Price for their EXTECH Additional
Shares;
(d) their respective Employment Agreements and Stock Option Agreements;
(e) their respective Restrictive Covenant Agreements;
(f) the Cold Comfort Letter;
(g) their respective Closing Notes;
(h) their respective Closing Pledge Agreements;
(i) the DCAP Opinions; and
(j) such other certified resolutions, documents and certificates as are
required to be delivered by the Shareholders pursuant to the provisions of this
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Agreement or which otherwise confirm that all of the conditions precedent to the
obligation of EXTECH and/or Certilman and Haft to close have been satisfied.
10.3 Items to be Delivered by EXTECH. At the Closing, EXTECH will deliver or
cause to be delivered to the Shareholders or Certilman and Haft (and/or their
designee(s)), as the case may be:
(a) the certificate required by Section 8.3 hereof;
(b) certificates representing the EXTECH Shares;
(c) the Employment Agreements and Stock Option Agreements for Certilman,
Haft and the Shareholders;
(d) the Closing Loans;
(e) the Closing Pledge Agreements;
(f) the EXTECH Opinion; and
(g) such other certified resolutions, documents and certificates as are
required to be delivered by EXTECH pursuant to the provisions of this Agreement
or otherwise confirm that all of the conditions precedent to the obligation of
the Shareholders and/or Certilman and Haft to close have been satisfied.
10.4 Items to be Delivered by Certilman and Haft. At the Closing, Certilman and
Haft will deliver or cause to be delivered to EXTECH or the Shareholders, as the
case may be:
(a) the EXTECH Additional Shares Purchase Price for their EXTECH Additional
Shares; and
(b) their respective Employment Agreements and Stock Option Agreements.
ARTICLE XI
POST-CLOSING MATTERS
11.1 Further Assurances. On and after the Closing Date, the parties shall take
all such further actions and execute and deliver all such further instruments
and documents as may be necessary or appropriate to carry out the transactions
contemplated by this Agreement.
11.2 Agreement as to Voting. Each of Certilman, Haft and the Shareholders agree
that, during the eight (8) year period following the Closing, (i) he will vote
his respective shares of stock of EXTECH in favor of the others as a director of
EXTECH provided that the particular person in whose favor the vote would be
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remains in the employ of EXTECH, (ii) in the event Certilman or Haft dies or
otherwise ceases to serve as a director of EXTECH, the Shareholders will vote
their respective shares of stock of EXTECH in favor of the designee of the
survivor of Certilman or Haft (or, in the case of a reason other than death, the
one remaining as a director), (iii) in the event Lang or Weinzimer dies or
otherwise ceases to serve as a director of EXTECH, Certilman and Haft will vote
their respective shares of stock of EXTECH in favor of the designee of the
survivor of Lang or Weinzimer (or, in the case of a reason other than death, the
one remaining as a director) and (iv) he will not vote his shares to (a)
increase the size of the Board of Directors of EXTECH or (b) amend the
Certificate of Incorporation or By-Laws of EXTECH, in each case without the
written approval of the others. In the event of the death or other cessation of
directorship of Certilman, Haft or either Shareholder during such period, unless
the Board vacancy is otherwise filled as provided for above, EXTECH will
promptly call a special meeting of stockholders to fill such vacancy.
11.3 Sales of EXTECH Shares. From time to time after the Closing and during any
time as any promissory note issued pursuant to either Shareholder's Employment
Agreement is outstanding, the particular Shareholder shall sell, as soon as
possible, the maximum number of shares of Common Stock of EXTECH that may be
permitted to be sold pursuant to any registration statement filed by EXTECH on
their behalf and/or pursuant to Rule 144, promulgated under the Securities Act,
and to use the proceeds thereof to satisfy in full his obligations thereunder.
Until the foregoing notes, the Additional Shares Notes and the Closing Loan
Notes have been satisfied in full, neither Shareholder shall sell or otherwise
dispose of any of his EXTECH Shares for less than Fair Market Value without the
prior written consent of EXTECH (which consent shall require the approval of the
Board of Directors of EXTECH) .
ARTICLE XII
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
12.1 Survival. The parties agree that their respective representations and
warranties contained in this Agreement shall survive the Closing for a period of
two (2) years, except that the representations and warranties set forth in
Sections 3.1 (with respect to the valid existence and good standing of the DCAP
Entities), 3.2, 4.1 (with respect to the valid existence and good standing of
EXTECH) and 4.2 shall be of an indefinite duration and the representations and
warranties set forth in Sections 3.9 and 4.9 shall survive until the expiration
of the applicable statute of limitations period.
12.2 Indemnification.
12.2.1 General Indemnification Obligation of the Shareholders. From and
after the Closing, the Shareholders, jointly and severally, will reimburse,
indemnify and hold harmless EXTECH or any DCAP Entity, as the case may be (in
each case, an "Indemnified EXTECH Party"), against and in respect of:
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(a) any and all damages, losses, deficiencies, liabilities, costs and
expenses incurred or suffered by any Indemnified EXTECH Party that result
from, relate to or arise out of:
(i) any misrepresentation, breach of warranty or nonfulfillment
of any agreement or covenant on the part of either Shareholder under
this Agreement, or from any misrepresentation in or omission from any
certificate, schedule, statement, document or instrument furnished to
EXTECH pursuant hereto or in connection with the negotiation,
execution or performance of this Agreement; and
(ii) any untrue statement or omission of a material fact in the
Proxy Statement which was based upon information furnished by either
Shareholder individually or on behalf of any DCAP Entity.
(b) any and all Actions, assessments, audits, fines, judgments, costs
and other expenses (including, without limitation, reasonable legal fees)
incident to any of the foregoing or to the enforcement of this Section
12.2.1.
12.2.2 General Indemnification Obligation of EXTECH. From and after the
Closing, EXTECH will reimburse, indemnify and hold harmless the Shareholders
against and in respect of:
(a) any and all damages, losses, deficiencies, liabilities, costs and
expenses incurred or suffered by the Shareholders that result from, relate
to or arise out of:
(i) any misrepresentation, breach of warranty or non-fulfillment
of any agreement or covenant on the part of EXTECH under this
Agreement, or from any misrepresentation in or omission from any
certificate, schedule, statement, document or instrument furnished to
the Shareholders pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement; and
(ii) any untrue statement or omission of a material fact in the
Proxy Statement except to the extent based upon information furnished
by either Shareholder individually or on behalf of any DCAP Entity.
(b) any and all Actions, assessments, audits, fines, judgments, costs
and other expenses (including, without limitation, reasonable legal fees)
incident to any of the foregoing or to the enforcement of this Section
12.2.2.
12.2.3 Method of Asserting Claims, Etc.
(a) In the event that any claim or demand for which either Shareholder
would be liable to an Indemnified EXTECH Party hereunder is asserted
against or sought to be collected from an Indemnified EXTECH Party by a
third party, EXTECH shall notify the Shareholders of such claim or demand,
specifying the nature of such claim or demand and the amount or the
estimated
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amount thereof to the extent then feasible (which estimate shall not be
conclusive of the final amount of such claim and demand) (the "Claim
Notice"). The Shareholders shall thereupon, at their sole cost and expense,
defend the Indemnified EXTECH Party against such claim or demand with
counsel reasonably satisfactory to EXTECH.
(b) The Shareholders shall not, without the prior written consent of
the Indemnified EXTECH Party, consent to the entry of any judgment against
the Indemnified EXTECH Party or enter into any settlement or compromise
which does not include, as an unconditional term thereof (i.e., there being
no requirement that the Indemnified EXTECH Party pay any amount of money or
give any other consideration), the giving by the claimant or plaintiff to
the Indemnified EXTECH Party of a release, in form and substance
satisfactory to the Indemnified EXTECH Party, as the case may be, from all
liability in respect of such claim or litigation. If any Indemnified EXTECH
Party desires to participate in, but not control, any such defense or
settlement, it may do so at its sole cost and expense. If, in the
reasonable opinion of the Indemnified EXTECH Party, any such claim or
demand or the litigation or resolution of any such claim or demand involves
an issue or matter which could have a materially adverse effect on the
business, operations, assets, properties or prospects of the Indemnified
EXTECH Party or its affiliates, then the Indemnified EXTECH Party shall
have the right to control the defense or settlement of any such claim or
demand and its costs and expenses shall be included as part of the
indemnification obligation of the Shareholders hereunder; provided,
however, that the Indemnified EXTECH Party shall not settle any such claim
or demand without the prior written consent of the Shareholders, which
consent shall not be unreasonably withheld or delayed. If the Indemnified
EXTECH Party should elect to exercise such right, the Shareholders shall
have the right to participate in, but not control, the defense or
settlement of such claim or demand at their sole cost and expense.
(c) Notwithstanding anything hereinabove to the contrary, the
Indemnified EXTECH Party shall have the right to employ separate counsel
(including local counsel), and the Shareholders shall bear the reasonable
fees, costs and expenses of such separate counsel (and local counsel) if
(i) the use of counsel chosen by the Shareholders to represent the
Indemnified EXTECH Party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the Indemnified EXTECH Party and the Shareholders
and the Indemnified EXTECH Party shall have reasonably concluded that there
may be legal defenses available to it which are different from or
additional to those available to the Shareholders, (iii) the Shareholders
shall not have employed counsel reasonably satisfactory to the Indemnified
EXTECH Party to represent the Indemnified EXTECH Party within a reasonable
time after notice of the institution of such action or (iv) the
Shareholders shall authorize the Indemnified EXTECH Party to employ
separate counsel at the expense of the Shareholders.
(d) In the event EXTECH should have a claim against the Shareholders
hereunder that does not involve a claim or demand being asserted against or
sought to be collected from it by a third party, EXTECH shall send a Claim
Notice with respect to such claim to the Shareholders. If the Shareholders
dispute their liability with respect to such claim or demand, such dispute
shall be resolved in accordance with Section 12.3 hereof; if the
Shareholders do not notify EXTECH,
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within twenty (20) days from receipt of the Claim Notice, that they dispute
such claim, the amount of such claim shall be conclusively deemed a
liability of the Shareholders hereunder.
(e) All claims for indemnification by the Shareholders under this
Agreement shall be asserted and resolved under the procedures set forth
hereinabove by substituting in the appropriate place "the Shareholders" for
"the Indemnified EXTECH Party" or "EXTECH", as the case may be, and
"EXTECH" for "the Shareholders".
12.2.4 Limitations.
(a) Notwithstanding anything herein to the contrary, as to matters
which are subject to indemnification pursuant to this Section 12.2, neither
the Shareholders, on the one hand, nor EXTECH, on the other hand, shall be
liable unless and until the aggregate claims, liabilities, losses, costs
and expenses to the Indemnified EXTECH Parties or the Shareholders, as the
case may be, resulting from such otherwise indemnifiable matters shall
exceed a cumulative aggregate of Twenty- Five Thousand Dollars ($25,000)
(the "Indemnification Threshold") and then shall only be liable for the
excess above the Indemnification Threshold. For purposes of this section
only, in determining whether there was any failure to disclose, breach or
failure of observance or performance or any untruth or incorrect statement
with regard to any representation, warranty, covenant, agreement or
commitment, the terms "material" and "materially," as used in such
representations, warranties, covenants, agreements and commitments, shall
be deemed deleted therefrom.
(b) The total indemnification to which the Indemnified EXTECH Parties
shall be entitled under this Section 12.2 (exclusive of legal fees and
expenses) shall be limited to an amount not to exceed Nine Hundred Fifty
Thousand Dollars ($950,000).
(c) At the option of EXTECH, any indemnification obligation of EXTECH
under this Agreement may be satisfied in whole or in part through the
issuance of additional shares of EXTECH Common Stock to the Shareholders
having an aggregate Fair Market Value equal to such indemnification amount.
(d) At the option of the Shareholders, any indemnification obligation
of the Shareholders under this Agreement may be satisfied in whole or in
part through the redelivery to EXTECH of any of the EXTECH Shares or the
delivery to EXTECH of any other shares of Common Stock of EXTECH
(including, without limitation, the Sterling Foster Shares), in each case
having an aggregate Fair Market Value equal to such indemnification amount.
12.3 Arbitration.
(a) All disputes under this Article XII shall be settled by binding
arbitration pursuant to the rules of the American Arbitration Association.
Arbitration may be commenced at any time by any party hereto giving written
notice to each other party to a dispute of its demand for arbitration, which
demand shall set forth the name and address of its arbitrator. Within twenty
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(20) days of such notice, the other party shall select its arbitrator and so
notify the demanding party. Within twenty (20) days thereafter, the two
arbitrators so selected shall select the third arbitrator. In default of either
side naming its arbitrator as aforesaid or in default of the selection of the
third arbitrator as aforesaid, the American Arbitration Association shall
designate such arbitrator upon the application of either party. The arbitration
proceeding shall take place at a mutually agreeable location in Nassau County or
such other location as agreed to by the parties. The dispute shall be heard by
the arbitrators within thirty (30) days after selection of the third arbitrator.
The decision of the arbitrators shall be rendered within thirty (30) days after
the hearing. Each party shall pay its own expenses of arbitration and the
expenses of the arbitrators shall be equally shared; provided, however, that if,
in the opinion of the majority of the arbitrators, any claim for indemnification
or any defense or objection thereto was unreasonable, the arbitrators may
assess, as part of their award, all or any part of the arbitration expenses of
the other party (including reasonable attorneys' fees) and of the arbitrators
and the arbitration proceeding against the party raising such unreasonable
claim, defense or objection.
(b) To the extent that arbitration may not be legally permitted hereunder
and the parties to any dispute hereunder may not at the time of such dispute
mutually agree to submit such dispute to arbitration, any party may commence a
civil Action in a court of appropriate jurisdiction to resolve disputes
hereunder.
(c) The decision of a majority of the arbitrators shall be final, binding
and conclusive, shall be specifically enforceable, and judgment may be entered
upon it in accordance with applicable law in the appropriate court in the State
of New York with no right of appeal therefrom.
12.4 Other Rights and Remedies Not Affected. The indemnification rights of the
parties under this Article XII are independent of and in addition to such rights
and remedies as the parties may have at law or in equity or otherwise for any
misrepresentation, breach of warranty or failure to fulfill any agreement or
covenant hereunder on the part of any party hereto, including without limitation
the right to seek specific performance, rescission or restitution, none of which
rights or remedies shall be affected or diminished hereby.
ARTICLE XIII
TERMINATION AND WAIVER
13.1 Termination. Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated and the transactions provided for herein
abandoned at any time prior to the Closing:
(a) By mutual consent of the Board of Directors of EXTECH and the
Shareholders;
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(b) By EXTECH if any of the conditions set forth in Article VII hereof
shall not have been fulfilled on or prior to the four month anniversary of the
date hereof, or shall have become incapable of fulfillment, in each case except
as such shall have been the result, directly or indirectly, of any action or
inaction by EXTECH, and shall not have been waived; or
(c) By the Shareholders, if any of the conditions set forth in Article VIII
hereof shall not have been fulfilled on or prior to the four month anniversary
of the date hereof, or shall have become incapable of fulfillment, in each case
except as such shall have been the result, directly or indirectly, of any action
or inaction by either Shareholder, and shall not have been waived.
If this Agreement is terminated as described above, this Agreement shall be
of no further force and effect, without any liability or obligation on the part
of any of the parties except for any liability which may arise pursuant to
Section 15.2 hereof or as a result of a party's willful failure to consummate
the transactions contemplated hereby or for any breach of any representation,
warranty or covenant.
13.2 Waiver. Any condition to the performance of the parties which legally may
be waived on or prior to the Closing Date may be waived at any time by the party
entitled to the benefit thereof by action taken or authorized by an instrument
in writing executed by the relevant party or parties. The failure of any party
at any time or times to require performance of any provision hereof shall in no
manner affect the right of such party at a later time to enforce the same. No
waiver by any party of the breach of any term, covenant, representation or
warranty contained in this Agreement as a condition to such party's obligations
hereunder shall release or affect any Liability resulting from such breach, and
no waiver of any nature, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be or construed as a further or continuing waiver
of any such condition or of any breach of any other term, covenant,
representation or warranty of this Agreement.
ARTICLE XIV
DEFINED TERMS
14.1 Defined Terms. As used herein, the terms below shall have the following
meanings. Any of such terms, unless the context otherwise requires, may be used
in the singular or plural, depending upon the reference.
"Action" shall mean any action, claim, suit, demand, litigation,
governmental or other proceeding, labor dispute, arbitral action, governmental
audit, inquiry, investigation, criminal prosecution, investigation or unfair
labor practice charge or complaint.
"Acquisition Purchase Price" shall have the meaning ascribed to it in
Section 2.3.1 hereof.
"ADA" shall mean the Americans with Disabilities Act of 1990.
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"Additional Shares Notes" shall have the meaning ascribed to it in Section
2.4.1(b) hereof.
"Additional Shares Pledge Agreement" shall have the meaning ascribed to it
in Section 2.4.1(b) hereof.
"Auto Club" shall have the meaning ascribed to it in the Recitals hereof.
"Body" shall mean a federal, state, local, and foreign governmental or
other regulatory body.
"Books and Records" shall mean all books, ledgers, files, reports, plans,
drawings, records and lists, including, without limitation, all computer
programs and other software, of every kind relating to an entity's business,
operations, assets, liabilities, personnel, customers and suppliers.
"Buy Out Agreement" shall have the meaning ascribed to it in Section 7.14
hereof.
"Claim Notice" shall have the meaning ascribed to it in Section 12.2.3(a)
hereof.
"Closing" shall have the meaning ascribed to it in Section 10.1 hereof.
"Closing Date" shall have the meaning ascribed to it in Section 10.1
hereof.
"Closing Loans" shall have the meaning ascribed to it in Section 2.5.2
hereof.
"Closing Loan Notes" shall have the meaning ascribed to it in Section 2.5.2
hereof.
"Closing Notes" shall have the meaning ascribed to it in Section 2.4.1(b)
hereof.
"Closing Pledge Agreements" shall have the meaning ascribed to it in
Section 2.5.2 hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Cold Comfort Letter" shall have the meaning ascribed to it in Section 7.11
hereof.
"Contract" shall mean any agreement, contract, note, lease, evidence of
indebtedness, purchase order, letter of credit, indenture, security or pledge
agreement, franchise agreement, undertaking, covenant not to compete, employment
agreement, license, instrument, obligation, commitment, course of dealing or
practice, understanding or arrangement, whether written or oral, to which a
particular Person is a party or is otherwise bound.
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"Copyrights" shall mean registered copyrights, copyright applications and
unregistered copyrights.
"DCAP Balance Sheet" shall mean the combined balance sheet of the DCAP
Entities as of the DCAP Balance Sheet Date which is included as part of the DCAP
Financial Statements.
"DCAP Balance Sheet Date" shall mean December 31, 1997.
"DCAP Business" shall have the meaning set forth in the preamble hereof.
"DCAP Financial Statements" shall mean the combined financial statements of
the DCAP Entities and separate financial statements of each DCAP Entity, in each
case as of the Balance Sheet Date and for the year ended December 31, 1997,
attached hereto as Schedule 3.5.
"DCAP Opinions" shall have the meaning ascribed to it in Section 7.13
hereof.
"Default" shall mean any breach, default and/or other violation, and/or the
occurrence of any event that with or without the passage of time or the giving
of notice or both would constitute a breach, default or other violation, under,
or give any Person the right to accelerate, terminate or renegotiate, any
Contract.
"Derivative Securities" shall have the meaning ascribed to it in Section
3.2 hereof.
"Employment Agreement" shall have the meaning ascribed to it in Section 7.8
hereof.
"ERISA" shall have the meaning ascribed to it in Section 3.20(a) hereof.
"ERISA Notice" shall have the meaning ascribed to it in Section 3.20(i)
hereof.
"EXTECH Acquisition Shares" shall have the meaning ascribed to it in
Section 2.3.1 hereof.
"EXTECH Management Additional Shares" shall have the meaning ascribed to it
in Section 2.4.1 hereof.
"EXTECH Additional Shares Purchase Price" shall have the meaning ascribed
to it in Section 2.4.1 hereof.
"EXTECH Balance Sheet" shall mean the consolidated balance sheet of EXTECH
as of the EXTECH Balance Sheet Date which is included as part of the SEC Report.
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"EXTECH Balance Sheet Date" shall mean September 30, 1997.
"EXTECH Opinion" shall have the meaning ascribed to it in Section 8.12
hereof.
"EXTECH Shares" shall have the meaning ascribed to it in Section 2.4.1
hereof.
"Facilities" shall have the meaning ascribed to it in Section 3.27 hereof.
"Fair Market Value," when used with regard to EXTECH Common Stock, shall
mean Twenty-Five Cents ($.25) per share, subject to adjustment for stock splits,
reverse stock splits, stock dividends and like recapitalizations.
"IAH" shall have the meaning ascribed to it in Section 5.2 hereof.
"Indemnified EXTECH Party" shall have the meaning ascribed to it in Section
12.2.1 hereof.
"Information" shall have the meaning ascribed to it in Section 15.2 hereof.
"Initial Pledge Agreement" shall have the meaning ascribed to it in Section
2.5.1 hereof.
"Insurance Brokerage" shall have the meaning ascribed to it in the Recitals
hereof.
"Liability" shall mean any direct or indirect liability, obligation,
indebtedness, obligation, commitment, expense, claim, deficiency, guaranty or
endorsement of or by any Person of any type, whether accrued, absolute,
contingent, matured, unmatured or otherwise.
"Lien" shall mean any claim, lien, pledge, option, charge, restriction,
easement, security interest, deed of trust, mortgage, right-of-way,
encroachment, building or use restriction, conditional sales agreement,
encumbrance or other right of third parties, whether voluntarily incurred or
arising by operation of law, and includes, without limitation, any agreement to
give any of the foregoing in the future, and any contingent sale or other title
retention agreement or lease in the nature thereof.
"Listed Agreements" shall mean those Contracts described on Schedule 3.14.
"Material Adverse Effect" shall mean any material adverse effect on the
business, properties, operations, assets, liabilities, condition (financial or
otherwise), or prospects of EXTECH, on the one hand, or the DCAP Entities, taken
as a whole, on the other hand.
"Materials of Environmental Concern" shall mean pollutants, contaminants,
hazardous or noxious or toxic materials or wastes.
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"950,000 Additional Shares" shall have the meaning ascribed to it in
Section 2.4.1(b) hereof.
"$114,000 Loan" shall have the meaning ascribed to it in Section 2.5.3(a)
hereof.
"$114,000 Note" shall have the meaning ascribed to it in Section 2.5.3(a)
hereof.
"Other Pension Plans" shall have the meaning ascribed to it in Section
3.20(c) hereof.
"Patents" shall mean all patents, patent applications, registered designs
and registered design applications.
"Pension Plans" shall have the meaning ascribed to it in Section 3.20(b)
hereof.
"Pension and Welfare Plans" shall have the meaning ascribed to it in
Section 3.20(h) hereof.
"Permits" shall mean all licenses, permits, franchises, approvals,
authorizations, consents or orders of, or filings with, any and all Bodies.
"Person" shall mean and include an individual, a partnership, a joint
venture, a corporation, a limited liability company, a limited liability
partnership, a trust, an unincorporated organization and a government or other
department or agency thereof.
"Potential Offer" shall have the meaning ascribed to it in Section 5.1
hereof.
"Potential Transaction" shall have the meaning ascribed to it in Section
5.1 hereof.
"Premium Finance" shall have the meaning ascribed to it in the Recitals
hereof.
"Proprietary Rights" shall mean Copyrights, Patents, Trademarks, other
technology rights and licenses, computer software (including, without
limitation, any source or object codes thereof or documentation relating
thereto), trade secrets, franchises, inventions, designs, specifications, plans,
drawings, data bases, know-how, domain names, world wide web addresses and other
intellectual property rights used or under development.
"Proxy Statement" shall mean the proxy statement prepared by EXTECH in
connection with its seeking to obtain Stockholder Approval.
"Restrictive Covenant Agreement" shall have the meaning ascribed to it in
Section 7.9 hereof.
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"Required Waivers" shall have the meaning ascribed to it in Section 3.21(b)
hereof.
"SEC" shall mean the United States Securities and Exchange Commission.
"SEC Report" shall have the meaning ascribed to it in Section 4.5 hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Sterling Foster" shall have the meaning ascribed to it in Section 2.4.2
hereof.
"Sterling Foster Purchase" shall have the meaning ascribed to it in Section
2.4.2 hereof.
"Sterling Foster Shares" shall have the meaning ascribed to it in Section
2.4.2 hereof.
"Stockholder Approval" shall mean approval by the stockholders of EXTECH of
(i) this Agreement and the transactions contemplated hereby, if required by
applicable law or otherwise sought by EXTECH; (ii) an amendment to the
Certificate of Incorporation of EXTECH pursuant to which (a) the number of
authorized shares of Common Stock of EXTECH is increased to at least 20,000,000,
(b) in the event the number of directors in office is less than four (4), then,
any action taken by the Board of Directors shall require the approval of all of
the directors then in office, and (c) no action required or permitted to be
taken at any annual or special meeting of stockholders of EXTECH may be taken
without a meeting, except upon the written consent of the holders of one hundred
percent (100%) of the shares of capital stock of the Company entitled to vote on
such action, unless such action has been authorized by the Board of Directors,
in which event such action may be taken by the written consent of the holders of
not less than a majority of the shares of capital stock entitled to vote on such
action; and (iii) an amendment to EXTECH's Amended and Restated 1990 Stock
Option Plan pursuant to which the number of shares of Common Stock authorized to
be issued thereunder is increased to at least 500,000 or the adoption of a new
stock option plan by EXTECH that provides for, among other things, the
authorization of at least 500,000 shares of Common Stock to be issued
thereunder.
"$311,000 Loan" shall have the meaning ascribed to it in Section 2.5.1
hereof.
"$311,000 Note" shall have the meaning ascribed to it in 2.5.1 hereof.
"$325,000 Loan" shall have the meaning ascribed to it in Section 2.5.3
hereof.
"$325,000 Note" shall have the meaning ascribed to it in Section 2.5.3
hereof.
"Tax Preparation" shall have the meaning ascribed to it in the Recitals
hereof.
EXTECH CORPORATION
51
<PAGE>
"Tax Services" shall mean DCAP Income Tax Services LLC.
"Trademarks" shall mean registered trademarks, registered service marks,
trademark and service mark applications and unregistered trademarks and service
marks.
"Voting Trust Agreement" shall have the meaning ascribed to it in Section
2.4.2 hereof.
"Welfare Plans" shall have the meaning ascribed to it in Section 3.20(h)
hereof.
ARTICLE XV
MISCELLANEOUS PROVISIONS
15.1 Expenses. Each of the parties shall bear its or his own expenses in
connection herewith.
15.2 Confidential Information. All information that a disclosing party furnishes
in connection with the transactions contemplated hereby (the "Information") will
be kept confidential, will be used solely in connection with the contemplated
transactions and will not, without prior written consent of the disclosing
party, be used or disclosed, directly or indirectly, in any manner whatsoever,
in whole or in part.
Notwithstanding anything hereinabove to the contrary, the obligations
imposed upon the parties herein shall not apply to Information:
(a) which is publicly available prior to the date hereof; or
(b) which hereafter becomes available to the public through no wrongful act
of the receiving party; or
(c) which was in the possession of the receiving party prior to the
commencement of negotiations between the parties with regard to the transactions
contemplated hereby and not subject to an existing agreement of confidence
between the parties; or
(d) which is received from a third party without restriction, not in
violation of an agreement of confidence and without breach of this Agreement;
(e) which is independently developed by the receiving party; or
(f) which is disclosed pursuant to a requirement or request of a government
agency, arbitrator or court.
EXTECH CORPORATION
52
<PAGE>
Upon the request of a disclosing party, which may be made at any time
following any termination of this Agreement in accordance with the terms hereof,
the receiving party will redeliver to the disclosing party any and all written
Information furnished to the receiving party and will not retain any copies
thereof.
15.3 Equitable Relief. The parties agree that the remedy at law for any breach
or threatened breach of the provisions of Section 15.2 will be inadequate and
the aggrieved party shall be entitled to injunctive relief to compel the
breaching party to perform or refrain from action required or prohibited
thereunder.
15.4 Publicity. Neither EXTECH, or the one hand, nor the Shareholders, directly
or through any DCAP Entity on the other hand, will issue any report, statement,
release or other public announcement pertaining to the matters contemplated by
this Agreement without the prior written consent of the other. Notwithstanding
the foregoing, EXTECH is permitted to make any disclosures or public
announcements of the transactions contemplated hereby and/or the terms thereof
without the prior written consent and approval of the Shareholders if it shall
determine that such disclosure is required in order for EXTECH to comply with
applicable securities laws and regulations.
15.5 Entire Agreement. This Agreement, including the schedules and exhibits
attached hereto, which are a part hereof, constitutes the entire agreement of
the parties with respect to the subject matter hereof. The representations,
warranties, covenants and agreements set forth in this Agreement and in the
financial statements, schedules or exhibits delivered pursuant hereto constitute
all the representations, warranties, covenants and agreements of the parties and
upon which the parties have relied, shall not be deemed waived or otherwise
affected by any investigation made by any party hereto and, except as may be
specifically provided herein, no change, modification, amendment, addition or
termination of this Agreement or any part thereof shall be valid unless in
writing and signed by or on behalf of the party to be charged therewith.
15.6 Notices. Any and all notices or other communications or deliveries required
or permitted to be given or made pursuant to any of the provisions of this
Agreement shall be deemed to have been duly given or made for all purposes when
in writing and hand delivered or sent by certified or registered mail, return
receipt requested and postage prepaid, overnight mail, nationally recognized
overnight courier or telecopier as follows:
If to EXTECH:
90 Merrick Avenue
East Meadow, New York 11554
Attention: Morton L. Certilman, President
Telecopier Number: (516) 296-7111
EXTECH CORPORATION
53
<PAGE>
With a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred Skolnik, Esq.
Telecopier Number: (516) 296-7111
If to either Shareholder:
c/o DCAP
2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier: (516) 735-7379
With a copy to:
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
Attention: William A. Ubert, Esq.
Telecopier: (516) 663-6643
or at such other address as any party may specify by notice given to the other
party in accordance with this Section 15.6.
15.7 Choice of Law; Severability. This Agreement shall be governed by, and
interpreted and construed in accordance with, the laws of the State of New York,
excluding choice of law principles thereof. In the event any clause, section or
part of this Agreement shall be held or declared to be void, illegal or invalid
for any reason, all other clauses, sections or parts of this Agreement which can
be effected without such void, illegal or invalid clause, section or part shall
nevertheless continue in full force and effect.
15.8 Successors and Assigns; No Assignment. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns; provided, however, that neither Shareholder nor EXTECH may assign any
of its rights or delegate any of its duties under this Agreement without the
prior written consent of the other, except that EXTECH shall have the right to
assign any or all of its rights hereunder to a wholly-owned subsidiary thereof.
15.9 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
EXTECH CORPORATION
54
<PAGE>
15.10 Facsimile Signatures. Signatures hereon which are transmitted via
facsimile shall be deemed original signatures.
15.11 Representation by Counsel; Interpretation. Each party acknowledges that he
or it has been represented by counsel in connection with this Agreement and the
transactions contemplated hereby. Accordingly, any rule or law or any legal
decision that would require the interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived by the parties. The provisions of this Agreement shall be
interpreted in a reasonable manner to give effect to the intent of the parties
hereto.
15.12 Headings; Gender. The headings, captions and/or use of a particular gender
under sections of this Agreement are for convenience of reference only and do
not in any way modify, interpret or construe the intent of the parties or affect
any of the provisions of this Agreement.
EXTECH CORPORATION
55
<PAGE>
WITNESS the execution of this Agreement as of the date first above written.
EXTECH CORPORATION
By:/s/ Morton L. Certilman
Morton L. Certilman, President
/s/ Morton L. Certilman
Morton L. Certilman
/s/ Jay M. Haft
Jay M. Haft
/s/ Kevin Lang
Kevin Lang
/s/ Abraham Weinzimer
Abraham Weinzimer
Agreed to:
DEALERS CHOICE AUTOMOTIVE
PLANNING INC.
By:/s/ Kevin Lang
Kevin Lang, President
EXTECH CORPORATION
<PAGE>
<TABLE>
Schedule A
<CAPTION>
Number of Common
Shares of Company
Owned by each
Name and Address of Company Shareholder Business
- --------------------------- ----------- --------
<S> <C> <C>
Dealers Choice Automotive Planning 50 Insurance Brokerage and performs administrative
Inc. duties including processing applications,
2545 Hempstead Turnpike claims, advertising and accounting
East Meadow, NY 11554
A DCAP Brokerage, Inc. 37.5 Insurance Brokerage and Tax Preparation
167-10A Hillside Avenue
Jamaica, NY 11432
DCAP Management Corp. 50 Franchisor
2545 Hempstead Turnpike
East Meadow, NY 11554
Payments Inc. 50 Premium finance
2545 Hempstead Turnpike
East Meadow, NY 11554
Diversified Coverage Asset Planning 50 Insurance Brokerage and Tax Preparation
Inc.
28 Main Street
Hempstead, NY 11550
Intandem Corporation 50 Auto Club
2545 Hempstead Turnpike
East Meadow, NY 11554
Fulton Street, Inc. 50 Insurance Brokerage and Tax Preparation
483 Hudson Avenue
Brooklyn , NY 11201
FASK Agency Inc. 50 dormant, holds lease on Fulton Street, Inc.
483 Hudson Avenue
Brooklyn , NY 11201
DCAP Jackson Heights, Inc. 50 Insurance Brokerage
c/o DCAP
2545 Hempstead Turnpike
East Meadow, NY 11554
</TABLE>
EXTECH CORPORATION
<PAGE>
<TABLE>
Schedule B
<CAPTION>
Percentage of
Outstanding Common
Shares of Joint Venture Number of Common
Owned by the Shares of Joint Venture
Name and Address of Shareholders Owned by each
Joint Venture Collectively Shareholder Business
- ------------- ------------ ----------- --------
<S> <C> <C> <C>
DCAP Flushing, Inc. 66.7 25 Insurance Brokerage
159-03 Northern Blvd.
Flushing, NY 11358
DCAP Hicksville, Inc. 66.7 25 Insurance Brokerage
418 South Broadway
Hicksville, NY 11801
DCAP Manhattan Inc. 50 25 Insurance Brokerage
90 Worth Street
New York, NY 10128
MC DCAP, Inc. 50 25 Insurance Brokerage
89-13 37th Avenue
Jackson Heights, NY
11372
DCAP Huntington, Inc. 50 25 Insurance Brokerage
809 Jericho Turnpike
Huntington Station, NY
11746
A DCAP Services, Inc. 50 25 Insurance Brokerage
1980 Tremont Avenue
Bronx, NY 10462
DCAP Medford Inc. 50 25 Insurance Brokerage
2852A Route 112
Medford, NY 11763
DCAP Bayshore, Inc. 50 25 Insurance Brokerage
709 North Broadway
Amityville, NY 11701
The Manhattan Agency Inc. 50 25 Insurance Brokerage
667 Amsterdam Avenue Tax Preparation
New York, NY 10025
DCAP Agency, Inc. 50 25 Insurance Brokerage
100 East 96th Street
New York, NY 10128
DCAP White Plains Inc. 50 25 Insurance Brokerage
200 Hamilton Avenue
White Plains, NY 10601
AAA DCAP Agency, Inc. 50 25 Insurance Brokerage
6KA Mall Walk
Yonkers, NY 10704
The Yonkers Agency Ltd. 50 25 Insurance Brokerage
6KA Mall Walk
Yonkers, NY 10704
DCAP Peekskill, Inc. 50 25 Insurance Brokerage
1045 Parl Street
Peekskill, NY 10566
DCAP Ridgewood, Inc. 50 25 Insurance Brokerage
59-30 Myrtle Avenue Tax Preparation
Ridgewood, NY 11385
DCAP East Meadow, Inc. 50 25 Insurance Brokerage
1905 Hempstead Turnpike
East Meadow, NY 11554
DCAP Garden City Park Inc. 50 25 Insurance Brokerage
2226 Jericho Turnpike
Garden City Park, NY 11040
DCAP Oceanside, Inc. 50 25 Insurance Brokerage
3214 Long Beach Road
Oceanside, NY 11572
DCAP Hari, Inc. 50 25 Insurance Brokerage
2048 Victory Blvd.
Staten Island, NY 10314
DCAP Woodhaven, Inc. 50 25 Insurance Brokerage
86-56 Woodhaven Blvd. Tax Preparation
Woodhaven, NY 11421
The Bronx Agency Inc. 50 25 Insurance Brokerage
3434 Boston Road
Bronx, NY 10469
The White Plains Agency Inc. 50 25 Insurance Brokerage
200 Hamilton Avenue
White Plains, NY 10601
DCAP Woodside Inc. 50 25 Insurance Brokerage
60-15 Woodside Avenue
Woodside, NY 11377
DCAP Seaford, Inc. 50 25 Insurance Brokerage
3789 Merrick Road
Seaford, NY 11783
DCAP Brentwood Inc. 50 25 Insurance Brokerage
776 Suffolk Avenue
Brentwood, NY 11717
DCAP Freeport, Inc. 50 25 Insurance Brokerage
17-19 West Sunrise
Highway
Freeport, NY 11520
DCAP Queens Agency Inc. 50 25 Insurance Brokerage
120-01 Liberty Avenue
Richmond Hill, NY 11419
DCAP Bayside, Inc. 50 25 Insurance Brokerage
43-04A Bell Blvd.
Bayside, NY 11361
AADCAP Greenbrook Inc. 50 25 Insurance Brokerage
119-131 Rte. 22 East
Greenbrook, NJ 08812
DCAP Income Tax 50 Tax Preparation
Services LLC
c/o DCAP
2545 Hempstead Turnpike
East Meadow, NY 11554
</TABLE>
EXTECH CORPORATION
<PAGE>
EXHIBIT 2.4.1(a)
___________, 1998
$114,000
PROMISSORY NOTE
FOR VALUE RECEIVED, _______________ (the "Maker"), having an address as
indicated under his name, hereby promises to pay to the order of EXTECH
CORPORATION, a Delaware corporation ("Extech"), at 90 Merrick Avenue, East
Meadow, New York or at such other place as the holder hereof may from time to
time designate in writing, in immediately available New York funds, the
principal sum of ONE HUNDRED FOURTEEN THOUSAND DOLLARS ($114,000), together with
interest on the outstanding principal balance from the date hereof at the rate
of six percent (6%) per annum. The principal amount of this Note, together with
accrued interest thereon, shall be payable in six (6) equal annual installments
of principal and interest, commencing on April 15, 2001 and continuing on the
first day of April of each subsequent year through April 15, 2006, in such
annual amount as shall be necessary to self-amortize this Note by April 15,
2006; provided, however, that the amounts due under this Note shall be payable
sooner to the extent of any proceeds received by the Maker from the sale or
other disposition of any shares of Common Stock of Extech on or after the date
hereof (the proceeds being immediately payable to Extech).
The payment of all amounts due under this Note is secured by a pledge of
570,000 shares of Common Stock of Extech owned by the Maker pursuant to a Pledge
Agreement of even date between the Maker and Extech (the "Pledge Agreement").
In the event (a) the Maker shall (i) fail to make any payment due hereunder
and such failure shall continue unremedied for a period of ten (10) days
following the date of written notice of default; (ii) admit in writing his
inability to pay his debts as they mature; (iii) make a general assignment for
the benefit of creditors; (iv) be adjudicated a bankrupt or insolvent; (v) file
a voluntary petition in bankruptcy or a petition or an answer seeking an
arrangement with creditors; (vi) take advantage of any bankruptcy, insolvency or
readjustment of debt law or statute or file an answer admitting the material
allegations of a petition filed against him in any proceeding under any such
law; or (vii) have entered against him a court order approving a petition filed
against him under the Federal Bankruptcy Act; or (b) there shall be a breach of
any representation, warranty, covenant or other agreement set forth in the
Pledge Agreement and such breach shall continue unremedied for a period of
fifteen (15) days following the date of written notice thereof, then and in each
and every such event (an "Event of Default"), Extech may, by written notice to
the Maker, declare the entire unpaid principal amount of this Note then
outstanding plus accrued interest to be forthwith due and payable whereupon the
same shall become forthwith due and payable.
The Maker may prepay the principal amount of this Note, in whole or in
part, from time to time, without premium or penalty, provided that the Maker
pays all interest accrued with regard to the principal prepaid to the date of
prepayment.
<PAGE>
If the Maker shall fail to pay when due, whether by acceleration or
otherwise, all or any portion of the principal amount hereof, any such unpaid
amount shall bear interest for each day from the date it was so due until paid
in full at the rate of sixteen percent (16%) per annum, payable on demand.
Notwithstanding anything to the contrary contained in this Note, the rate
of interest payable on this Note shall never exceed the maximum rate of interest
permitted under applicable law.
This Note may not be waived, changed, modified or discharged orally, but
only by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceedings (whether at the trial or appellate level), or should this Note be
placed in the hands of any agent or attorneys for collection upon default or
maturity, the Maker agrees to pay, in addition to all other amounts due and
payable hereunder, all reasonable costs and expenses of collection or attempting
to collect this Note, including reasonable attorneys' fees.
The Maker and any endorsers hereof, for themselves and their respective
representatives, successors and assigns, expressly (a) waive presentment,
protest, notice of dishonor, notice of non-payment, notice of maturity, notice
of protest, diligence in collection, and the benefit of any applicable
exemptions, including, but not limited to, exemptions claimed under insolvency
laws, and (b) consent that Extech may release or surrender, exchange or
substitute any property or other collateral or security now held or which may
hereafter be held as security for the payment of this Note, and/or may release
any guarantor, and/or may extend the time for payment and/or otherwise modify
the terms of payment of any part or the whole of the debt evidenced hereby.
Any notice, demand or request relating to any matter set forth herein shall
be in writing and shall be deemed effective when hand delivered, when mailed,
postage prepaid, by registered or certified mail, return receipt requested, or
by a nationally recognized overnight mail or courier service, or when sent by
facsimile transmission (with transmission confirmation) to any party hereto at
its address stated herein or at such other address of which it shall have
notified the party giving such notice in writing as aforesaid.
Extech shall be entitled to assign all or any portion of his right, title
and interest in and to this Note at his sole discretion without notice to the
Maker, provided that the Maker shall continue to make payments required
hereunder to Extech until he has received notice of change of payee for payments
as provided herein.
2
<PAGE>
Notwithstanding any other provision of this Note, all payments made
hereunder shall be applied first to payment of sums payable hereunder other than
interest and principal, secondly, interest on the principal balance outstanding
hereunder from time to time, and thirdly to principal.
The Maker acknowledges and agrees that the obligations under this Note are
unconditional and are not subject to any defense, counterclaim, or right of
offset or setoff.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York, excluding conflict of law principles thereof.
The Maker acknowledges that he has been represented by counsel in
connection with this Note. Accordingly, any rule or law or any legal decision
that would require the interpretation of any claimed ambiguities in this Note
against the party that drafted it has no application and is expressly waived by
the Maker. The provisions of this Note shall be interpreted in a reasonable
manner to give effect to the intent of the Maker and Extech.
[name]
Address: 2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier Number: (516) 735-7379
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\241A3.NOT
3
<PAGE>
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On ____________, 1998 before me personally came ________________ to me
known, and known to be the individual described in, and who executed the
foregoing Note, and duly acknowledged to me that he executed the same.
Notary Public
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\241A3.NOT
4
<PAGE>
EXHIBIT 2.4.1(b)
PLEDGE AGREEMENT, dated ____________, 1998, by and between _________ (the
"Pledgor") and EXTECH CORPORATION, a Delaware corporation (the "Pledgee").
WHEREAS, simultaneously herewith, the Pledgor is purchasing from the
Pledgee four hundred seventy-five thousand (475,000) shares of Common Stock of
the Pledgee and, in partial consideration therefor, is executing and delivering
to the Pledgee a Promissory Note of even date in the principal amount of One
Hundred Fourteen Thousand Dollars ($114,000) (the "Note").
WHEREAS, the Pledgee desires, and the Pledgor is willing, to secure
performance of the Note.
WHEREAS, certain capitalized terms used herein are defined in Section 8
hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. PLEDGE. The Pledgor hereby grants to the Pledgee, as security for the
performance by the Pledgor of all of his obligations under the Note (the
"Obligations"), a valid and binding first security interest in the Collateral
(as hereinafter defined). The Pledgor has delivered simultaneously herewith to
the Pledgee, and the Pledgee hereby acknowledges receipt of, a certificate
evidencing the Pledged Shares registered in the name of the Pledgor (the
"Pledged Certificate"), accompanied by appropriate stock powers endorsed by the
Pledgor (the "Stock Powers").
2. TERM. This Agreement shall continue in effect until terminated in accordance
with Section 7 hereof.
3. SHARE RIGHTS; CASH DIVIDENDS.
(a) In the event of any change in the Pledged Shares during the term of
this Agreement by reason of any stock dividend, stock split-up, reverse split,
recapitalization, combination, reclassification, exchange of shares, merger,
consolidation or the like, all new, substituted, or additional stock, or other
securities, issued by reason of any such change (the "Adjusted Shares") (the
Pledged Shares and the Adjusted Shares are hereinafter referred to collectively
as the "Shares") shall be retained by or delivered to, as the case may be, and
held by the Pledgee under the terms of this Agreement in the same manner as the
Pledged Shares originally pledged hereunder.
(b) Unless and until the occurrence of a Default (as hereinafter defined),
the Pledgor shall have the right to vote the Shares. Upon the occurrence of a
Default, the Shares shall be registered in the name of the Pledgee and the
Pledgee shall have all incidents of ownership thereof.
(c) Provided that no Default has occurred, any and all cash dividends paid
in respect of the Shares shall be paid to the Pledgor; provided, however, that,
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\241BPLE3.DGE
1
<PAGE>
in any event, any extraordinary distributions made in respect of the Shares
shall be retained by the Pledgee and held by it in accordance with the terms
hereof.
4. REPRESENTATIONS. The Pledgor hereby represents and warrants to the Pledgee
that:
(a) The Pledgor is the sole record and beneficial owner of the Pledged
Shares, free and clear of all liens, pledges, security interests, encumbrances,
restrictions, subscriptions, hypothecations, charges and claims of any kind
whatsoever.
(b) No consents of governmental and other regulatory agencies, foreign or
domestic, or of other parties are required to be received by or on the part of
the Pledgor to enable him to enter into and carry out this Agreement and the
transactions contemplated hereby.
(c) The Pledgor has the power to enter into this Agreement and to carry out
his obligations hereunder. This Agreement constitutes the valid and binding
obligation of the Pledgor, and is enforceable in accordance with its terms.
(d) Neither the execution and delivery of this Agreement nor compliance by
the Pledgor with any of the provisions hereof nor the consummation of the
transactions contemplated hereby will violate or, alone or with notice or the
passage of time, result in the material breach or termination of, or otherwise
give any contracting party the right to terminate, or declare a default under,
the terms of any agreement, understanding or arrangement to which the Pledgor is
a party or by which he or his assets or properties may be bound.
5. COVENANTS.
(a) The Pledgor hereby covenants that from and after the date hereof and
until the Obligations shall have been satisfied in full:
(i) The Pledgor will not grant, create, incur, assume or suffer to
exist any Lien in the Collateral (except for the Lien created hereby).
(ii) The Pledgor will defend the Pledgee's right, title, and security
interest in and to the Collateral against the claims of any person, firm,
corporation or other entity.
(iii) The Pledgor shall at any time and from time to time, upon the
written request of the Pledgee, execute and deliver such other instruments
and documents and do such further acts and things as the Pledgee may
reasonably request in order to effect the purposes of this Agreement.
(b) The Pledgee's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
2
<PAGE>
of the Code or otherwise, shall be to deal with it in the same manner as the
Pledgee deals with similar securities and property for its own account.
6. DEFAULT. (a) In the event that the Pledgor fails to pay to the Pledgee any
Obligation when due or there shall otherwise occur an Event of Default (as
defined in the Note) ("Default"), the Pledgee shall have all of the rights and
remedies afforded to secured parties with respect to the Collateral as set forth
in the Code as well as all other rights and remedies granted in the Note and
this Agreement. Without limiting the generality of the foregoing, the Pledgee,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Pledgor (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign, give an option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, upon such terms and conditions and at such prices as it
may deem advisable, for cash or on credit or for future delivery without
assumption of any credit risk. The Pledgee shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold. The
Pledgee shall apply any proceeds from time to time held by it and the net
proceeds of any such sale or other disposition, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Pledgee hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of counsel to the
Pledgee, to the satisfaction in whole or in part of the Obligations, in such
order as the Pledgee may elect and only after such application and after the
payment by the Pledgee of any other amount required by any provision of law,
including, without limitation, Section 9-504 (1)(c) of the Code, need the
Pledgee account for the surplus, if any, to the Pledgor. To the extent permitted
by applicable law, the Pledgor waives all claims, damages and demands he may
acquire against the Pledgee arising out of the lawful exercise by it of any
rights hereunder. Neither the Pledgee nor any of its respective directors,
officers, employees or agents shall be liable for failure to sell or otherwise
dispose of the Collateral or for any delay in doing so. If any notice of a
proposed sale or other disposition of the Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least ten (10)
days before such sale or other disposition. In any event, notice of a proposed
sale or other disposition shall be given at least ten (10) days before such sale
or other disposition to the Pledgor and [for Lang: Abraham Weinzimer; and for
Weinzimer: Kevin Lang]. The Pledgor shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Collateral are insufficient
to pay all of the Obligations and any and all costs and expenses of every kind
incurred by the Pledgee with respect to the collection of such deficiency,
including, without limitation, all reasonable fees and disbursements of any
attorneys employed by the Pledgee.
The Pledgor recognizes that the Pledgee may be unable to effect a public
sale of any or all the Collateral by reason of certain restrictions contained in
the Securities Act of 1933, as amended, and applicable state securities laws or
3
<PAGE>
otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree, among other
things, to acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and agrees that any such private
sale under such circumstances shall not be evidence that it has been made in
other than a commercially reasonable manner.
The Pledgor agrees to use his best efforts to do or cause to be done all
such other acts as may be necessary to make such sale or sales of all or any
portion of the Collateral pursuant to this section valid and binding and in
compliance with any and all other applicable requirements of law.
(b) The rights of the Pledgee hereunder shall not be conditioned or
contingent upon the pursuit by the Pledgee of any right or remedy against the
Pledgor, any other person which may be or become liable in respect of all or any
part of the Obligations or against any collateral security therefor, guarantee
therefor or right of offset with respect thereto. Neither the Pledgee nor any of
its affiliates or representatives shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor shall the Pledgee be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or any other person or
to take any other action whatsoever with regard to the Collateral or any part
thereof.
7. TERMINATION OF AGREEMENT; PARTIAL RELEASE. (a) Upon (i) the Pledgor's
satisfaction of the Obligations in full (at which time the Pledgee shall
redeliver the Pledged Certificate and accompanying Stock Powers to the Pledgor),
or (ii) the conclusion of the actions contemplated by Section 6 hereof, this
Agreement shall thereupon terminate.
(b) Provided that no Default has occurred and is continuing, for each one
dollar ($1.00) of principal amount of the Note, together with accrued interest
thereon, that is paid to the Pledgee, five (5) Pledged Shares shall be released
from the pledge created hereby and redelivered to the Pledgor.
8. DEFINED TERMS. The following terms shall have the following meanings:
(a) "Code" means the Uniform Commercial Code from time to time in effect in
the State of New York.
(b) "Collateral" means the Pledged Shares and all Proceeds.
(c) "Pledged Shares" means five hundred seventy thousand (570,000) shares
of Common Stock of the Pledgee, together with any and all shares, stock
certificates, options or rights of any nature whatsoever that may be issued or
granted to the Pledgor with regard thereto, in substitution or replacement
thereof, as a conversion thereof, in exchange therefor or otherwise in respect
thereof.
4
<PAGE>
(d) "Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the Code on the date hereof and, in any event, shall include,
without limitation, all dividends or other income from the Pledged Shares,
collections thereon and distributions with respect thereto.
9. MISCELLANEOUS.
(a) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives, successors and
assigns.
(b) This Agreement contains the entire agreement and understanding between
the parties in respect of the subject matter hereof, and cannot be modified,
changed, discharged or terminated except by an instrument in writing, signed by
the party against whom enforcement of any modification, change, discharge or
termination is sought.
(c) A waiver of the breach of any term or condition of this Agreement shall
not be deemed to constitute a waiver of any other breach of the same or any
other term or condition.
(d) This Agreement will be construed and governed in accordance with the
laws of the State of New York, excluding choice of law rules thereof.
(e) All notices or other communications required or permitted hereunder
shall be sufficiently given if delivered by hand, or sent by certified mail,
return receipt requested, postage prepaid, facsimile transmission or overnight
mail or courier, addressed as follows:
If to the Pledgor:
c/o Dealers Choice Automotive Planning Inc.
2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier Number: (516) 735-7379
with a copy to:
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
Attention: William A. Ubert, Esq.
Telecopier Number: (516) 663-6643
5
<PAGE>
If to the Pledgee:
90 Merrick Avenue
East Meadow, New York 11554
Attention: President
Telecopier Number: (516) 296-7111
with a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred Skolnik, Esq.
Telecopier Number: (516) 296-7111
(f) The Pledgor waives any and all notice of the extension or modification
of the terms of the Note.
(g) In the event that the Collateral or any portion thereof is released to
the Pledgor and any payments of, or proceeds of any security for, the
Obligations, or any part thereof, are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then the Pledgor shall redeliver the Collateral
and Stock Powers to the Pledgee and, until so redelivered, shall hold the
Collateral and Stock Powers as agent of, and in trust for, the Pledgee.
(h) If any provision hereof is declared to be invalid and unenforceable,
then, to the fullest extent permitted by law, the other provisions hereof shall
remain in full force and effect and shall be liberally construed in favor of the
Pledgee in order to carry out the intentions of the parties hereto as nearly as
may be possible.
(i) Each party acknowledges that he or it has been represented by counsel
in connection with this Agreement. Accordingly, any rule or law or any legal
decision that would require the interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived by the parties. The provisions of this Agreement shall be
interpreted in a reasonable manner to give effect to the intent of the parties
hereto.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EXTECH CORPORATION
By:
Morton L. Certilman,
President
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\241BPLE3.DGE
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<PAGE>
EXHIBIT 2.5.2(a)
_____________, 1998
$112,500
PROMISSORY NOTE
FOR VALUE RECEIVED, _______________ (the "Maker"), having an address as
indicated under his name, hereby promises to pay to the order of EXTECH
CORPORATION, a Delaware corporation ("Extech"), at its offices at 90 Merrick
Avenue, East Meadow, New York 11554 or at such other place as the holder hereof
may from time to time designate in writing, in immediately available New York
funds, the principal sum of ONE HUNDRED TWELVE THOUSAND FIVE HUNDRED DOLLARS
($112,500), together with interest on the outstanding principal balance from the
date hereof at the rate of six percent (6%) per annum. The principal amount of
this Note, together with accrued interest thereon, shall be payable in six (6)
equal annual installments of principal and interest, commencing on April 15,
2001 and continuing on the first day of April of each subsequent year through
April 15, 2006, in such annual amount as shall be necessary to self-amortize
this Note by April 15, 2006; provided, however, that the amounts due under this
Note shall be payable sooner to the extent of any proceeds received by the Maker
from the sale or other disposition of any shares of Common Stock of Extech on or
after the date hereof (the proceeds being immediately payable to Extech).
The Maker may pay any or all amounts due hereunder by delivery to Extech of
certificates representing shares of Common Stock of Extech duly endorsed by the
Maker or accompanied by stock powers duly executed by the Maker, together with
evidence of the payment of all transfer taxes in connection therewith and a
written notice that it is making payment under this Note by such delivery. Any
such shares of Common Stock of Extech so delivered shall be valued at the
greater of (a) twenty-five cents ($.25) per share, subject to adjustment for
stock splits, reverse stock splits, stock dividends and like recapitalizations
that take effect after the date hereof or (b) the average Market Price (as
hereinafter defined) of Extech's shares of Common Stock during the twenty (20)
trading days immediately preceding the date of delivery of the shares. As used
herein, the term "Market Price" shall mean the closing selling price or, if not
available, the mean of the closing bid and asked prices, or, if not available,
the mean of the highest bid and lowest asked prices, of the shares of Common
Stock of Extech as reported by a national securities exchange or The Nasdaq
Stock Market ("Nasdaq") or, if Extech's shares of Common Stock are not listed on
a national securities exchange or Nasdaq, as reported by the NASD OTC Electronic
Bulletin Board (the "Bulletin Board'), or if Extech's shares of Common Stock are
not listed on the Bulletin Board, as reported by the National Quotation Bureau,
LLC, or other similar organization if such organization is no longer reporting
such information, as the case may be.
The payment of all amounts due under this Note is secured by a pledge of
450,000 shares of Extech owned by the Maker pursuant to a Pledge Agreement of
even date between the Maker and Extech (the "Pledge Agreement").
<PAGE>
In the event (a) the Maker shall (i) fail to make any payment due hereunder
and such failure shall continue unremedied for a period of ten (10) days
following the date of written notice of default; (ii) admit in writing his
inability to pay his debts as they mature; (iii) make a general assignment for
the benefit of creditors; (iv) be adjudicated a bankrupt or insolvent; (v) file
a voluntary petition in bankruptcy or a petition or an answer seeking an
arrangement with creditors; (vi) take advantage of any bankruptcy, insolvency or
readjustment of debt law or statute or file an answer admitting the material
allegations of a petition filed against him in any proceeding under any such
law; or (vii) have entered against him a court order approving a petition filed
against him under the Federal Bankruptcy Act; or (b) there shall be a breach of
any representation, warranty, covenant or other agreement set forth in the
Pledge Agreement and such breach shall continue unremedied for a period of
fifteen (15) days following the date of written notice thereof, then and in each
and every such event (an "Event of Default"), Extech may, by written notice to
the Maker, declare the entire unpaid principal amount of this Note then
outstanding plus accrued interest to be forthwith due and payable whereupon the
same shall become forthwith due and payable.
The Maker may prepay the principal amount of this Note, in whole or in
part, from time to time, without premium or penalty, provided that the Maker
pays all interest accrued with regard to the principal prepaid to the date of
prepayment.
If the Maker shall fail to pay when due, whether by acceleration or
otherwise, all or any portion of the principal amount hereof, any such unpaid
amount shall bear interest for each day from the date it was so due until paid
in full at the rate of sixteen percent (16%) per annum, payable on demand.
Notwithstanding anything to the contrary contained in this Note, if an
Event of Default shall occur and any suit is brought hereunder, then any
judgment obtained in such suit may be enforced solely against the Collateral (as
such term is defined in the Pledge Agreement). Nothing contained in this
paragraph, however, shall be deemed to constitute a release or impairment of any
of Extech's rights under the Pledge Agreement or the security interest granted
therein.
Notwithstanding anything to the contrary contained in this Note, the rate
of interest payable on this Note shall never exceed the maximum rate of interest
permitted under applicable law.
This Note may not be waived, changed, modified or discharged orally, but
only by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceedings (whether at the trial or appellate level), or should this Note be
placed in the hands of any agent or attorneys for collection upon default or
maturity, the Maker agrees to pay, in addition to all other amounts due and
payable hereunder, all reasonable costs and expenses of collection or attempting
to collect this Note, including reasonable attorneys' fees.
2
<PAGE>
The Maker and any endorsers hereof, for themselves and their respective
representatives, successors and assigns, expressly (a) waive presentment,
protest, notice of dishonor, notice of non-payment, notice of maturity, notice
of protest, diligence in collection, and the benefit of any applicable
exemptions, including, but not limited to, exemptions claimed under insolvency
laws, and (b) consent that Extech may release or surrender, exchange or
substitute any property or other collateral or security now held or which may
hereafter be held as security for the payment of this Note, and/or may release
any guarantor, and/or may extend the time for payment and/or otherwise modify
the terms of payment of any part or the whole of the debt evidenced hereby.
Any notice, demand or request relating to any matter set forth herein shall
be in writing and shall be deemed effective when hand delivered, when mailed,
postage prepaid, by registered or certified mail, return receipt requested, or
by a nationally recognized overnight mail or courier service, or when sent by
facsimile transmission (with transmission confirmation) to any party hereto at
its address stated herein or at such other address of which he or it shall have
notified the party giving such notice in writing as aforesaid.
Extech shall be entitled to assign all or any portion of its right, title
and interest in and to this Note at its sole discretion without notice to the
Maker, provided that the Maker shall continue to make payments required
hereunder to Extech until he has received notice of change of payee for payments
as provided herein.
Notwithstanding any other provision of this Note, all payments made
hereunder shall be applied first to payment of sums payable hereunder other than
interest and principal, secondly, interest on the principal balance outstanding
hereunder from time to time, and thirdly to principal.
The Maker acknowledges and agrees that the obligations under this Note are
unconditional and are not subject to any defense, counterclaim, or right of
offset or setoff.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York, excluding conflict of law principles thereof.
The Maker acknowledges that he has been represented by counsel in
connection with this Note. Accordingly, any rule or law or any legal decision
that would require the interpretation of any claimed ambiguities in this Note
against the party that drafted it has no application and is expressly waived by
the Maker. The provisions of this Note shall be interpreted in a reasonable
manner to give effect to the intent of the Maker and Extech.
[name]
Address: 2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier Number: (516) 735-7379
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252A3.NOT
3
<PAGE>
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On ____________, 1998 before me personally came _____________ to me known,
and known to be the individual described in, and who executed the foregoing
Note, and duly acknowledged to me that he executed the same.
Notary Public
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252A3.NOT
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<PAGE>
EXHIBIT 2.5.2(b)
PLEDGE AGREEMENT, dated ____________, 1998, by and between _________ (the
"Pledgor") and EXTECH CORPORATION, a Delaware corporation (the "Pledgee").
WHEREAS, simultaneously herewith, the Pledgee is loaning to the Pledgor the
sum of One Hundred Twelve Thousand Five Hundred Dollars ($112,500) (the "Loan")
and the Pledgor is executing and delivering to the Pledgee a Promissory Note of
even date in such principal amount (the "Note").
WHEREAS, the proceeds of the Loan are being used by the
Pledgor to purchase the Pledged Shares (as hereinafter defined).
WHEREAS, the Pledgee desires, and the Pledgor is willing, to secure
performance of the Note.
WHEREAS, certain capitalized terms used herein are defined in Section 8
hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. PLEDGE. The Pledgor hereby grants to the Pledgee, as security for the
performance by the Pledgor of all of his obligations under the Note (the
"Obligations"), a valid and binding first security interest in the Collateral
(as hereinafter defined). The Pledgor has delivered simultaneously herewith to
the Pledgee, and the Pledgee hereby acknowledges receipt of, a certificate
evidencing the Pledged Shares registered in the name of the Pledgor (the
"Pledged Certificate"), accompanied by appropriate stock powers endorsed by the
Pledgor (the "Stock Powers").
2. TERM. This Agreement shall continue in effect until terminated in accordance
with Section 7 hereof.
3. SHARE RIGHTS; CASH DIVIDENDS.
(a) In the event of any change in the Pledged Shares during the term of
this Agreement by reason of any stock dividend, stock split-up, reverse split,
recapitalization, combination, reclassification, exchange of shares, merger,
consolidation or the like, all new, substituted, or additional stock, or other
securities, issued by reason of any such change (the "Adjusted Shares") (the
Pledged Shares and the Adjusted Shares are hereinafter referred to collectively
as the "Shares") shall be retained by or delivered to, as the case may be, and
held by the Pledgee under the terms of this Agreement in the same manner as the
Pledged Shares originally pledged hereunder.
(b) Unless and until the occurrence of a Default (as hereinafter defined),
the Pledgor shall have the right to vote the Shares. Upon the occurrence of a
Default, the Shares shall be registered in the name of the Pledgee and the
Pledgee shall have all incidents of ownership thereof.
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252BPLE3.DGE
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<PAGE>
(c) Provided that no Default has occurred, any and all cash dividends paid
in respect of the Shares shall be paid to the Pledgor; provided, however, that,
in any event, any extraordinary distributions made in respect of the Shares
shall be retained by the Pledgee and held by it in accordance with the terms
hereof.
4. REPRESENTATIONS. The Pledgor hereby represents and warrants to the Pledgee
that:
(a) The Pledgor is the sole record and beneficial owner of the Pledged
Shares, free and clear of all liens, pledges, security interests, encumbrances,
restrictions, subscriptions, hypothecations, charges and claims of any kind
whatsoever.
(b) No consents of governmental and other regulatory agencies, foreign or
domestic, or of other parties are required to be received by or on the part of
the Pledgor to enable him to enter into and carry out this Agreement and the
transactions contemplated hereby.
(c) The Pledgor has the power to enter into this Agreement and to carry out
his obligations hereunder. This Agreement constitutes the valid and binding
obligation of the Pledgor, and is enforceable in accordance with its terms.
(d) Neither the execution and delivery of this Agreement nor compliance by
the Pledgor with any of the provisions hereof nor the consummation of the
transactions contemplated hereby will violate or, alone or with notice or the
passage of time, result in the material breach or termination of, or otherwise
give any contracting party the right to terminate, or declare a default under,
the terms of any agreement, understanding or arrangement to which the Pledgor is
a party or by which he or his assets or properties may be bound.
5. COVENANTS.
(a) The Pledgor hereby covenants that from and after the date hereof and
until the Obligations shall have been satisfied in full:
(i) The Pledgor will not grant, create, incur, assume or suffer to
exist any Lien in the Collateral (except for the Lien created hereby).
(ii) The Pledgor will defend the Pledgee's right, title, and security
interest in and to the Collateral against the claims of any person, firm,
corporation or other entity.
(iii) The Pledgor shall at any time and from time to time, upon the
written request of the Pledgee, execute and deliver such other instruments
and documents and do such further acts and things as the Pledgee may
reasonably request in order to effect the purposes of this Agreement.
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252BPLE3.DGE
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<PAGE>
(b) The Pledgee's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Pledgee deals with similar securities and property for its own account.
6. DEFAULT. (a) In the event that the Pledgor fails to pay to the Pledgee any
Obligation when due or there shall otherwise occur an Event of Default (as
defined in the Note) ("Default"), the Pledgee shall have all of the rights and
remedies afforded to secured parties with respect to the Collateral as set forth
in the Code as well as all other rights and remedies granted in the Note and
this Agreement. Without limiting the generality of the foregoing, the Pledgee,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Pledgor (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign, give an option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, upon such terms and conditions and at such prices as it
may deem advisable, for cash or on credit or for future delivery without
assumption of any credit risk. The Pledgee shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold. The
Pledgee shall apply any proceeds from time to time held by it and the net
proceeds of any such sale or other disposition, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Pledgee hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of counsel to the
Pledgee, to the satisfaction in whole or in part of the Obligations, in such
order as the Pledgee may elect and only after such application and after the
payment by the Pledgee of any other amount required by any provision of law,
including, without limitation, Section 9-504 (1)(c) of the Code, need the
Pledgee account for the surplus, if any, to the Pledgor. To the extent permitted
by applicable law, the Pledgor waives all claims, damages and demands he may
acquire against the Pledgee arising out of the lawful exercise by it of any
rights hereunder. Neither the Pledgee nor any of its respective directors,
officers, employees or agents shall be liable for failure to sell or otherwise
dispose of the Collateral or for any delay in doing so. If any notice of a
proposed sale or other disposition of the Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least ten (10)
days before such sale or other disposition. In any event, notice of a proposed
sale or other disposition shall be given at least ten (10) days before such sale
or other disposition to the Pledgor and [for Lang: Abraham Weinzimer; and for
Weinzimer: Kevin Lang].
The Pledgor recognizes that the Pledgee may be unable to effect a public
sale of any or all the Collateral by reason of certain restrictions contained in
the Securities Act of 1933, as amended, and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree, among other
things, to acquire such securities for their own account for investment and not
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252BPLE3.DGE
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<PAGE>
with a view to the distribution or resale thereof. The Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and agrees that any such private
sale under such circumstances shall not be evidence that it has been made in
other than a commercially reasonable manner.
The Pledgor agrees to use his best efforts to do or cause to be done all
such other acts as may be necessary to make such sale or sales of all or any
portion of the Collateral pursuant to this section valid and binding and in
compliance with any and all other applicable requirements of law.
(b) The rights of the Pledgee hereunder shall not be conditioned or
contingent upon the pursuit by the Pledgee of any right or remedy against the
Pledgor, any other person which may be or become liable in respect of all or any
part of the Obligations or against any collateral security therefor, guarantee
therefor or right of offset with respect thereto. Neither the Pledgee nor any of
its affiliates or representatives shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor shall the Pledgee be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or any other person or
to take any other action whatsoever with regard to the Collateral or any part
thereof.
7. TERMINATION OF AGREEMENT. Upon (i) the Pledgor's satisfaction of the
Obligations in full (at which time the Pledgee shall redeliver the Pledged
Certificate and accompanying Stock Powers to the Pledgor), or (ii) the
conclusion of the actions contemplated by Section 6 hereof, this Agreement shall
thereupon terminate.
8. DEFINED TERMS. The following terms shall have the following meanings:
(a) "Code" means the Uniform Commercial Code from time to time in effect in
the State of New York.
(b) "Collateral" means the Pledged Shares and all Proceeds.
(c) "Pledged Shares" means four hundred fifty thousand (450,000) shares of
Common Stock of the Pledgee, together with any and all shares, stock
certificates, options or rights of any nature whatsoever that may be issued or
granted to the Pledgor with regard thereto, in substitution or replacement
thereof, as a conversion thereof, in exchange therefor or otherwise in respect
thereof.
(d) "Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the Code on the date hereof and, in any event, shall include,
without limitation, all dividends or other income from the Pledged Shares,
collections thereon and distributions with respect thereto.
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252BPLE3.DGE
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<PAGE>
9. MISCELLANEOUS.
(a) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives, successors and
assigns.
(b) This Agreement contains the entire agreement and understanding between
the parties in respect of the subject matter hereof, and cannot be modified,
changed, discharged or terminated except by an instrument in writing, signed by
the party against whom enforcement of any modification, change, discharge or
termination is sought.
(c) A waiver of the breach of any term or condition of this Agreement shall
not be deemed to constitute a waiver of any other breach of the same or any
other term or condition.
(d) This Agreement will be construed and governed in accordance with the
laws of the State of New York, excluding choice of law rules thereof.
(e) All notices or other communications required or permitted hereunder
shall be sufficiently given if delivered by hand, or sent by certified mail,
return receipt requested, postage prepaid, facsimile transmission or overnight
mail or courier, addressed as follows:
If to the Pledgor:
c/o Dealers Choice Automotive Planning Inc.
2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier Number: (516) 735-7379
with a copy to:
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
Attention: William A. Ubert, Esq.
Telecopier Number: (516) 663-6643
If to the Pledgee:
90 Merrick Avenue
East Meadow, New York 11554
Attention: President
Telecopier Number: (516) 296-7111
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252BPLE3.DGE
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<PAGE>
with a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred Skolnik, Esq.
Telecopier Number: (516) 296-7111
(f) The Pledgor waives any and all notice of the extension or modification
of the terms of the Note.
(g) In the event that the Collateral or any portion thereof is released to
the Pledgor and any payments of, or proceeds of any security for, the
Obligations, or any part thereof, are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then the Pledgor shall redeliver the Collateral
and Stock Powers to the Pledgee and, until so redelivered, shall hold the
Collateral and Stock Powers as agent of, and in trust for, the Pledgee.
(h) If any provision hereof is declared to be invalid and unenforceable,
then, to the fullest extent permitted by law, the other provisions hereof shall
remain in full force and effect and shall be liberally construed in favor of the
Pledgee in order to carry out the intentions of the parties hereto as nearly as
may be possible.
(i) Each party acknowledges that he or it has been represented by counsel
in connection with this Agreement. Accordingly, any rule or law or any legal
decision that would require the interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived by the parties. The provisions of this Agreement shall be
interpreted in a reasonable manner to give effect to the intent of the parties
hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EXTECH CORPORATION
By:
Morton L. Certilman,
President
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\252BPLE3.DGE
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EXHIBIT 7.8
EMPLOYMENT AGREEMENT, dated as of , 1998, by and between EXTECH
CORPORATION, a Delaware corporation (the "Company"), and _____________ (the
"Employee").
RECITALS
WHEREAS, the Company and the Employee desire to enter into an employment
agreement which will set forth the terms and conditions upon which the Employee
shall be employed by the Company and upon which the Company shall compensate the
Employee.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
hereinafter set forth, the parties hereto have agreed, and do hereby agree, as
follows:
1. EMPLOYMENT; TERM
1.1 (a) The Company will employ the Employee in its business, and the
Employee will work for the Company therein, as its [Lang - President; Weinzimer
- - Executive Vice President; Certilman - Chairman of the Board and Chairman of
the Company's Audit Committee and Finance Committee; Haft - Vice Chairman of the
Board and Vice Chairman of the Company's Audit Committee and Finance Committee]
for a term commencing as of the date hereof and terminating on the fifth
anniversary of the date hereof (the "Fifth Anniversary Date") (the "Initial
Term"), except that the term of this Agreement shall continue for an additional
three (3) years (the "Extended Term") unless, at least ninety (90) days prior to
the Fifth Anniversary Date, the Company, by vote of a majority of all of the
members of its Board of Directors (including, for purposes of determining the
number of members of the Board, the Employee, if a member), notifies the
Employee of its desire not to extend the term of this Agreement (the
"Non-Extension Notice"). The term of this Agreement, as it may be extended, is
hereinafter referred to as the "Employment Period".
(b) The Employee's employment may be terminated by the Company at any
time during the Employment Period upon written notice for "cause". The
Company agrees that it will not terminate the Employee's employment for
"cause" or otherwise unless a majority of all of the members of its Board
of Directors (including, for purposes of determining the number of members
of the Board, the Employee, if a member) shall have approved such action.
As used in this Agreement, "cause" shall mean the Employee's commission of
any act in the performance of his duties constituting common law fraud, a
felony or other gross malfeasance of duty, the Employee's commission of any
act involving moral turpitude, any material misrepresentation by the
Employee (including, without limitation, a breach of any representation set
forth in Paragraph 13.1 hereof), any breach of any material covenant on the
Employee's part herein set forth, or the Employee's engagement in
misconduct which is materially injurious to the Company or its
subsidiaries.
1.2 Unless sooner terminated as provided for in this Agreement, at the end
of the Employment Period (the "Expiration Date"), the Employee's employment with
the Company shall terminate. Upon termination of the Employee's employment with
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the Company for any reason whatsoever, he shall be deemed to have resigned his
positions as an officer and director of the Company and as an employee, officer
and director of each of the Company's subsidiaries.
2. DUTIES
2.1 During the Employment Period, the Employee shall serve as the Company's
[Lang - President; Weinzimer - Executive Vice President; Certilman - Chairman of
the Board and Chairman of the Company's Audit Committee and Finance Committee;
Haft - Vice Chairman of the Board and Vice Chairman of the Company's Audit
Committee and Finance Committee] and shall perform duties of an executive
character consisting of administrative and managerial responsibilities on behalf
of the Company and such further duties of an executive character as shall, from
time to time, be delegated or assigned to him by the Board of Directors of the
Company consistent with the Employee's position.
3. DEVOTION OF TIME
3.1 During the Employment Period, the Employee shall expend all of his
working time for the Company [except that, Certilman and Haft need only perform
such part-time services as are reasonably necessary for them to fulfill their
responsibilities hereunder as Chairman of the Board and Vice Chairman,
respectively]; shall devote his best efforts, energy and skill to the services
of the Company and the promotion of its interests; and shall not take part in
activities detrimental to the best interests of the Company.
4. COMPENSATION [FOR LANG AND WEINZIMER ONLY:; LOANS]
4.1 For all services to be rendered by the Employee during the Employment
Period and in consideration of the Employee's representations and covenants set
forth in this Agreement, the Employee shall be entitled to receive from the
Company compensation as set forth herein. [For Lang and Weinzimer only: The
Employee acknowledges and agrees that, notwithstanding the provisions of this
Agreement, his compensation hereunder is subject to reduction as provided for in
a certain Agreement, dated as of ___________, 1998, by and among the Company and
the Employee, among others (the "Acquisition Agreement"), with regard to any
particular Joint Venture with respect to which the provisions of Schedule 8 to
the Acquisition Agreement are applicable.]
4.2 During the Employment Period, the Employee shall be entitled to receive
a salary at the rate of [Lang - $250,000; Weinzimer - $250,000; Certilman -
$125,000; Haft - $22,500] per annum. The Employee shall be entitled to such
additional compensation as shall be determined from time to time by the Board of
Directors of the Company in its sole discretion. All amounts due hereunder shall
be payable in accordance with the Company's standard payroll practices.
4.3 [For Lang and Weinzimer only: From time to time during each of the five
(5) twelve (12) month periods of the Initial Term, within ten (10) days
following receipt of written request from the Employee, the Company will loan to
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the Employee up to $20,000 (up to $100,000 in the aggregate)] (collectively, the
"Loans"); provided, however, that the Company's obligation to make each such
Loan shall be subject to the condition that, at the time the particular Loan is
to be made, the Employee is in the employ of the Company. Each Loan will be
evidenced by a promissory note of the Employee in the principal amount thereof
(collectively, the "Notes") that will provide for, among other things, the
following:
(i) interest at a rate per annum equal to the "prime rate" (as
reported in the Wall Street Journal) in effect as of the date each Loan is
made; and
(ii) payment of the principal amount thereof, together with accrued
interest thereon, in four (4) equal annual installments commencing one (1)
year from the date of each Loan and continuing on the anniversary day of
the date thereof of each subsequent year, in such annual amount as shall be
necessary to self-amortize the Note at the end of such four (4) year period
(provided, however, that no payments shall be due later than the seventh
anniversary of the date hereof), subject to acceleration to the extent the
Employee receives any proceeds from the sale or other disposition of any
shares of Common Stock of the Company;
The Notes shall be in, or substantially in, the form of Exhibit 4.3(a)
attached hereto.
The repayment of all amounts due under each Note shall be secured by the
pledge by the Employee, pursuant to a pledge agreement that will be entered into
at the time of each Loan (the "Pledge Agreement"), of five (5) Common Shares of
the Company for each one dollar ($1) loaned.
The Pledge Agreement shall be in, or substantially in, the form of Exhibit
4.3(b) attached hereto.]
[4.4 For Lang and Weinzimer only: In the event Pre-Tax Net Income (as
hereinafter defined) for any fiscal year falling entirely within the Employment
Period (but not before the fiscal year ending December 31, 2000 and not after
the fiscal year ending December 31, 2005) is at least $100,000, the Employee
shall be entitled to receive a bonus in the amount of $37,500 (a "Bonus").]
[4.5 For Lang and Weinzimer only: For purposes hereof, the term "Pre-Tax Net
Income" for any particular fiscal year shall mean the consolidated net income
before all taxes of the Company for such fiscal year determined in accordance
with generally accepted accounting principles consistently applied, as audited
and reported upon by the Company's then independent certified public
accountants.]
[4.6 For Lang and Weinzimer only: Any Bonus payable pursuant to the provisions
hereof shall be paid on April 15 following the particular fiscal year.]
[4.7 For Lang and Weinzimer only: Notwithstanding anything herein to the
contrary, (a) the Company shall not be obligated to pay any Bonus to the
Employee for a particular fiscal year if, at the time the particular Bonus would
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be otherwise payable, no amounts are payable by the Employee to the Company
pursuant to his Additional Shares Note (as such term is defined in the
Acquisition Agreement), and (b) if any amounts are then payable by the Employee
pursuant to his Additional Shares Note, (i) the amount of the Bonus shall not
exceed the amount then payable pursuant to his Additional Shares Note; and (ii)
the Company may offset against the Bonus any amount then payable by the Employee
pursuant to his Additional Shares Note.]
5. AUTOMOBILE ALLOWANCE; REIMBURSEMENT OF EXPENSES
5.1 [For Lang and Weinzimer only: The Employee shall be entitled to the use
of a Company-leased automobile (the "Company Car") during the Employment Period
for business purposes. In no event shall the Company's lease obligations with
respect to the Company Car exceed $1,200 per month. The Company shall be
responsible for all insurance premiums with respect to the Company Car (not to
exceed $3,000 per year) as well as all expenses for gasoline, maintenance and
repairs with respect thereto. The Employee acknowledges and agrees that under no
circumstances shall the foregoing provisions create any implication that the
Company shall be liable for, or that the Employee shall be entitled to
reimbursement with respect to, any other insurance premiums, including, without
limitation, any life insurance premiums or premiums with respect to any
insurance for any automobile other than the Company Car, or with respect to any
country club or similar membership. The Employee acknowledges and agrees further
that, until sold or otherwise disposed of, the Company-owned boat shall be used
by the Employee solely for business purposes.]
5.2 The Company shall pay directly, or reimburse the Employee for, all [for
Lang and Weinzimer only: other] reasonable and necessary expenses and
disbursements incurred by the Employee for and on behalf of the Company in the
performance of his duties during the Employment Period, including, without
limitation, reasonable and necessary expenses incurred by the Employee for and
on behalf of the Company in the performance of his duties during the Employment
Period for (a) client entertainment and the use of a cellular telephone and
beeper, and (b) food, lodging and transportation if he is required to perform
any of his duties away from his primary place of residence.
5.3 The Employee shall submit to the Company, not less than once in each
calendar month, reports of such expenses and other disbursements in form
normally used by the Company and receipts with respect thereto and the Company's
obligations under Paragraphs 5.1 and 5.2 hereof shall be subject to compliance
therewith.
6. DISABILITY; INSURANCE
6.1 If, during the Employment Period, the Employee, in the opinion of a
majority of all of the members of the Board of Directors of the Company
(excluding the Employee), as confirmed by competent medical evidence, shall
become physically or mentally incapacitated to perform his duties for the
Company hereunder ("Disabled") for a continuous period, then for the first six
(6) months of such period he shall receive his full salary. In no event,
however, shall the Employee be entitled to receive any payments under this
Paragraph 6.1 beyond the expiration or termination date of this Agreement.
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Effective with the date of his resumption of full employment, the Employee shall
be re-entitled to receive his full salary. If such illness or other incapacity
shall endure for a continuous period of at least nine (9) months or for at least
two hundred fifty (250) business days during any eighteen (18) month period, the
Company shall have the right, by written notice, to terminate the Employee's
employment hereunder as of a date (not less than thirty (30) days after the date
of the sending of such notice) to be specified in such notice. The Employee
agrees to submit himself for appropriate medical examination to a physician of
the Company's designation as necessary for purposes of this Paragraph 6.1.
6.2 The obligations of the Company under this Paragraph 6 may be satisfied,
in whole or in part, by payments to the Employee under disability insurance
provided by the Company.
6.3 Notwithstanding the foregoing, in the event, at the time of any
apparent incapacity, the Company has in effect a disability policy with respect
to the Employee (or, if not with respect to the Employee, then with respect to
any executive officer of the Company), the Employee shall be considered Disabled
for purposes of Paragraph 6.1 only if he is (or the executive officer, had he
had the apparent incapacity, would be) considered disabled for purposes of the
policy.
6.4 [For Lang and Weinzimer only: The Company agrees to obtain a disability
insurance policy on behalf of the Employee (subject to the Employee's satisfying
any requirements therefor) and maintain such policy in effect during the
Employment Period. In no event shall the Company be liable for premiums in
excess of $6,500 per annum with respect thereto.]
7. RESTRICTIVE COVENANTS
7.1 The services of the Employee are unique and extraordinary and essential
to the business of the Company, especially since the Employee shall have access
to the Company's customer lists, trade secrets and other privileged and
confidential information essential to the Company's business. Therefore, the
Employee agrees that, if the term of his employment hereunder shall expire or
his employment shall at any time terminate for any reason whatsoever, with or
without cause, the Employee will not at any time within two (2) years after such
expiration or termination (the "Restrictive Covenant Period"), without the prior
written consent of the Company (which consent shall require the approval of the
Board of Directors of the Company), directly or indirectly, anywhere within five
(5) miles of the location of any office of the Company or any franchisee thereof
at the date of expiration or termination, whether individually or as a
principal, officer, employee, partner, member, manager, director, agent of, or
consultant or independent contractor to, any entity, (i) engage or participate
in a business which, as of such expiration or termination date, is similar to or
competitive with, directly or indirectly, that of the Company and shall not make
any investments in any such similar or competitive entity, except that the
foregoing shall not restrict the Employee from acquiring up to one percent (1%)
of the outstanding voting stock of any entity whose securities are listed on a
stock exchange or Nasdaq; (ii) cause or seek to persuade any director, officer,
employee, customer, client, account, agent or supplier of, or consultant or
independent contractor to, the Company, or others with whom the Company has a
business relationship (collectively "Business Associates"), to discontinue or
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materially modify the status, employment or relationship of such person or
entity with the Company, or to become employed in any activity similar to or
competitive with the activities of the Company; (iii) cause or seek to persuade
any prospective customer, client, account or other Business Associate of the
Company (which at or about the date of cessation of the Employee's employment
with the Company was then actively being solicited by the Company) to determine
not to enter into a business relationship with the Company or to materially
modify its contemplated business relationship; (iv) hire, retain or associate in
a business relationship with, directly or indirectly, any director, officer or
employee of the Company; or (v) solicit or cause or authorize to be solicited,
or accept, for or on behalf of him or any third party, any business from, or the
entering into of a business relationship with, (a) others who are, or were
within one (l) year prior to the cessation of his employment with the Company, a
customer, client, account or other Business Associate of the Company, or (b) any
prospective customer, client, account or other Business Associate of the Company
which at or about the date of such cessation was then actively being solicited
by the Company. The foregoing restrictions set forth in this Paragraph 7.1 shall
apply likewise during the Employment Period. Notwithstanding the foregoing, (x)
in the event the Employee is entitled to receive the Severance Amount (as
hereinafter defined) or his employment is terminated by the Company without
cause, then the obligations under this Paragraph 7.1 shall terminate in the
event the Company defaults in its obligation to make any payments provided for
in Paragraph 11.2 or 11.3 hereof and such default continues for a period of
twenty (20) days following receipt by the Company of written notice thereof from
the Employee; and (y) the provisions of this Paragraph 7.1 shall cease to apply
in the event (I) this Agreement is terminated pursuant to the provisions of
Paragraph 11.1(a) hereof or (II) (A) the term of this Agreement is extended for
the Extended Term; (B) prior to the expiration of the Extended Term (the
"Extended Expiration Date"), the Employee is not offered by the Company a
further two (2) year extension of the term of this Agreement at an annual base
salary at least equal to his annual base salary in effect at the Extended
Expiration Date and otherwise substantially upon the terms set forth herein
[(for Lang and Weinzimer only: except for any loans and bonuses provided for
herein)]; (C) prior to the Extended Expiration Date, the Employee's employment
with the Company is not terminated in accordance with the provisions of
Paragraph 11.1(b) hereof and he does not voluntarily terminate his employment
with the Company; and (D) the Employee's employment with the Company terminates
on the Extended Expiration Date.
7.2 The Employee agrees to disclose promptly in writing to the Board of
Directors of the Company all ideas, processes, methods, devices, business
concepts, inventions, improvements, discoveries, know-how and other creative
achievements (hereinafter referred to collectively as "discoveries"), whether or
not the same or any part thereof is capable of being patented, trademarked,
copyrighted, or otherwise protected, which the Employee, while employed by the
Company, conceives, makes, develops, acquires or reduces to practice, whether
acting alone or with others and whether during or after usual working hours, and
which are related to the Company's business or interests, or are used or usable
by the Company, or arise out of or in connection with the duties performed by
the Employee. The Employee hereby transfers and assigns to the Company all
right, title and interest in and to such discoveries (whether conceived, made,
developed, acquired or reduced to practice on or prior to the date hereof or
hereafter during his employment with the Company), including any and all
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domestic and foreign copyrights and patent and trademark rights therein and any
renewals thereof. On request of the Company, the Employee will, without any
additional compensation, from time to time during, and after the expiration or
termination of, the Employment Period, execute such further instruments
(including, without limitation, applications for copyrights, patents, trademarks
and assignments thereof) and do all such other acts and things as may be deemed
necessary or desirable by the Company to protect and/or enforce its right in
respect of such discoveries. All expenses of filing or prosecuting any patent,
trademark or copyright application shall be borne by the Company, but the
Employee shall cooperate in filing and/or prosecuting any such application.
7.3 (a) The Employee represents that he has been informed that it is the
policy of the Company to maintain as secret all confidential information
relating to the Company, including, without limitation, any and all knowledge or
information with respect to secret or confidential methods, processes, plans,
materials, customer lists or data, or with respect to any other confidential or
secret aspect of the Company's activities, and further acknowledges that such
confidential information is of great value to the Company. The Employee
recognizes that, by reason of his employment with the Company, he will acquire
confidential information as aforesaid. The Employee confirms that it is
reasonably necessary to protect the Company's goodwill, and, accordingly, hereby
agrees that he will not, directly or indirectly (except where authorized by the
Board of Directors of the Company), at any time during the term of this
Agreement or thereafter divulge to any person, firm or other entity, or use, or
cause or authorize any person, firm or other entity to use, any such
confidential information.
(b) The Employee agrees that he will not, at any time, remove from the
Company's premises any drawings, notebooks, software, data or other
confidential information relating to the business and procedures heretofore
or hereafter acquired, developed and/or used by the Company, except where
necessary in the fulfillment of his duties hereunder.
(c) The Employee agrees that, upon the expiration or termination of
this Agreement for any reason whatsoever, he shall promptly deliver to the
Company any and all drawings, notebooks, software, data and other documents
and material, including all copies thereof, in his possession or under his
control relating to any confidential information or discoveries, or which
is otherwise the property of the Company.
(d) For purposes hereof, the term "confidential information" shall
mean all information given to the Employee, directly or indirectly, by the
Company and all other information relating to the Company otherwise
acquired by the Employee during the course of his employment with the
Company (whether on or prior to the date hereof or hereafter), other than
information which (i) was in the public domain at the time furnished to, or
acquired by, the Employee, or (ii) thereafter enters the public domain
other than through disclosure, directly or indirectly, by the Employee or
others in violation of an agreement of confidentiality or nondisclosure.
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7.4 For purposes of this Paragraph 7, the term "Company" shall mean and
include any and all subsidiaries and affiliated entities of the Company in
existence from time to time.
8. VACATIONS
8.1 The Employee shall be entitled to an aggregate of four (4) weeks
vacation time for each twelve (12) month period during the Employment Period
commencing on the date hereof [for Certilman and Haft, giving effect to the
provisions of Paragraph 3.1 hereof and the part-time nature of their services],
the time and duration thereof to be determined by mutual agreement between the
Employee and the Company.
9. PARTICIPATION IN EMPLOYEE BENEFIT PLANS; STOCK OPTIONS
9.1 The Employee shall be accorded the right to participate in and receive
benefits under and in accordance with the provisions of any pension, profit
sharing, insurance, medical and dental insurance or reimbursement (with family
coverage) or other plan or program of the Company either in existence as of the
date hereof or hereafter adopted for the benefit generally of its executive
employees.
9.2 Concurrently with the execution hereof, pursuant to the Company's
Amended and Restated 1990 Stock Option Plan and a Stock Option Agreement of even
date, the Company is granting to the Employee the right and option to purchase
up to [Lang - 200,000; Weinzimer - 200,000; Certilman - 100,000; Haft - 100,000]
Common Shares of the Company upon the following terms: (a) an expiration date of
five (5) years from the date hereof; (b) an exercise price equal to $____ per
share [110% of fair market value, as defined in the Plan, on the date of grant;]
and (c) vesting to the extent of one-half thereof on each of the first and
second anniversaries of the date hereof (the "Option").
10. SERVICE AS OFFICER OF SUBSIDIARIES; SERVICE AS DIRECTOR
10.1 During the Employment Period, the Employee shall, if elected or
appointed, serve as (a) an officer of any subsidiaries of the Company in
existence or hereafter created or acquired [except for Certilman who need only
serve as President of IAH, Inc. and Haft who need not serve as an officer] and
(b) a director of the Company and/or any such subsidiaries of the Company, in
each case without any additional compensation for such services.
11. EARLIER TERMINATION; PAYMENT FOLLOWING TERMINATION
11.1 The Employee's employment hereunder shall automatically terminate upon
his death and may terminate at the option of the Company in the event of:
(a) the Employee's incapacity, as provided for in Paragraph 6.l
hereof; or
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(b) "cause", as provided for in Paragraph 1.1 hereof.
Upon the termination of the Employee's employment, the Employment Period shall
be considered to have ended.
11.2 In the event of the following:
(a) the Company timely sends the Non-Extension Notice to the Employee
in accordance with the provisions of Paragraph 1.1 hereof;
(b) prior to the Fifth Anniversary Date, the Employee's employment
with the Company is not terminated in accordance with the provisions of
Paragraph 11 hereof and he does not voluntarily terminate his employment
with the Company; and
(c) the Employee's employment with the Company terminates on the Fifth
Anniversary Date,
then, the Company shall continue to pay to the Employee his then annual base
salary for a period of two (2) years following the Fifth Anniversary Date (the
"Severance Amount"). The Severance Amount shall be payable in a manner
consistent with the payment to the Employee theretofore of his salary.
11.3 In the event of the termination of the Employee's employment by the
Company during the Employment Period without cause, as liquidated damages, the
Employee shall be entitled to receive an amount equal to all compensation that
he would have been entitled to receive for the remainder of the Employment
Period pursuant to Paragraph 4 hereof as if his employment had not been
terminated (the "Post-Termination Payments"). The Post-Termination Payments
shall be made in a manner consistent with the payment to the Employee
theretofore of his salary as if he had remained in the employ of the Company. In
the event the notice of termination of employment is given (a) prior to the
ninetieth (90th) day prior to the Fifth Anniversary Date or (b) subsequent to
such ninetieth (90th) day but after the date of any Non-Extension Notice timely
given, then, instead of any obligation to pay the Employee any amount with
regard to the Extended Term, the Employee shall be entitled to receive the
Severance Amount, payable, as provided for in Paragraph 11.2 hereof, following
the expiration of the Post-Termination Payments.
11.4 The Employee shall not be required to mitigate any damages he may
incur for any termination of employment by the Company without cause by seeking
other employment; however, any amounts paid or payable to the Employee from
other employment or other services shall reduce on a dollar-for-dollar basis any
amount otherwise payable to him pursuant to Paragraph 11 hereof.
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12. INJUNCTIVE RELIEF; REMEDIES
12.1 The Employee acknowledges and agrees that, in the event he shall
violate or threaten to violate any of the restrictions of Paragraph 3 (with
regard to the last clause thereof) or 7 hereof, the Company will be without an
adequate remedy at law and will therefore be entitled to enforce such
restrictions by temporary or permanent injunctive or mandatory relief in any
court of competent jurisdiction without the necessity of proving damages.
12.2 The Employee agrees further that the Company shall have the following
additional rights and remedies:
(i) The right and remedy to require the Employee to account for and
pay over to the Company all profits derived or received by him as the
result of any transactions constituting a breach of any of the provisions
of Paragraph 7.1, and the Employee hereby agrees to account for and pay
over such profits to the Company; and
(ii) The right to recover attorneys' fees incurred in any action or
proceeding in which it seeks to enforce its rights under Paragraph 7 hereof
and is successful on any grounds.
12.3 Each of the rights and remedies enumerated above shall be independent
of the other, and shall be severally enforceable, and all of such rights and
remedies shall be in addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
12.4 The parties hereto intend to and hereby confer jurisdiction to enforce
the covenants contained in Paragraph 7.1 upon the courts of any jurisdiction
within the geographical scope of such covenants (a "Jurisdiction"). In the event
that the courts of any one or more of such Jurisdictions shall hold such
covenants unenforceable by reason of the breadth of their scope or otherwise, it
is the intention of the parties hereto that such determination not bar or in any
way affect the Company's right to the relief provided above in the courts of any
other Jurisdiction, as to breaches of such covenants in such other respective
Jurisdictions, the above covenants as they relate to each Jurisdiction being,
for this purpose, severable into diverse and independent covenants.
13. NO RESTRICTIONS
13.l The Employee hereby represents that neither the execution of this
Agreement nor his performance hereunder will (a) violate, conflict with or
result in a breach of any provision of, or constitute a default (or an event
which, with notice or lapse of time or both, would constitute a default) under
the terms, conditions or provisions of any contract, agreement or other
instrument or obligation to which the Employee is a party, or by which he may be
bound, or (b) violate any order, judgment, writ, injunction or decree applicable
to the Employee. In the event of a breach hereof, in addition to the Company's
right to terminate this Agreement, the Employee shall indemnify the Company and
hold it harmless from and against any and all claims, losses, liabilities, costs
and expenses (including reasonable attorneys' fees) incurred or suffered in
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connection with or as a result of the Company's entering into this Agreement or
employing the Employee hereunder.
14. ARBITRATION
14.1 Except with regard to Paragraph 12.1 hereof and any other matters that
are not a proper subject of arbitration, all disputes between the parties hereto
concerning the performance, breach, construction or interpretation of this
Agreement or any portion thereof, or in any manner arising out of this Agreement
or the performance thereof, shall be submitted to binding arbitration, in
accordance with the rules of the American Arbitration Association, which
arbitration shall be carried out in the manner hereinafter set forth.
14.2 Within twenty (20) days after written notice by one party to the other
of its demand for arbitration, which demand shall set forth the name and address
of its arbitrator, the other party shall select its arbitrator and so notify the
demanding party. Within twenty (20) days thereafter, the two arbitrators so
selected shall select the third arbitrator. The decision of any two (2)
arbitrators shall be binding upon the parties. In default of either side naming
its arbitrator as aforesaid or in default of the selection of the said
arbitrator as aforesaid, the American Arbitration Association shall designate
such arbitrator upon the application of either party. The arbitration proceeding
shall take place at a mutually agreeable location in Nassau County, New York or
such other location as agreed to by the parties.
14.3 A party who files a notice of demand for arbitration must assert in
the demand all claims then known to that party on which arbitration is permitted
to be demanded. When a party fails to include a claim through oversight,
inadvertence or excusable neglect, or when a claim has matured or been acquired
subsequently, the arbitrators may permit amendment. A demand for arbitration
shall be made within a reasonable time after the claim has arisen, and in no
event shall it be made after the date when institution of legal or equitable
proceedings based on such claim would be barred by the applicable statute of
limitations.
14.4 The award rendered by the arbitrators shall be final, binding and
conclusive, shall be specifically enforceable, and judgment may be entered upon
it in accordance with applicable law in the appropriate court in the State of
New York, with no right of appeal therefrom.
14.5 Each party shall pay its or his own expenses of arbitration, and the
expenses of the arbitrators and the arbitration proceeding shall be equally
shared; provided, however, that, if, in the opinion of a majority of the
arbitrators, any claim or defense was unreasonable, the arbitrators may assess,
as part of their award, all or any part of the arbitration expenses of the other
party (including reasonable attorneys' fees) and of the arbitrators and the
arbitration proceeding against the party raising such unreasonable claim or
defense; provided, further, that, if the arbitration proceeding relates to the
issue of "cause" for termination of employment, (a) if, in the opinion of a
majority of the arbitrators, "cause" existed, the arbitrators shall assess, as
part of their award, all of the arbitration expenses of the Company (including
reasonable attorneys' fees) and of the arbitrators and the arbitration
proceeding against the Employee or (b) if, in the opinion of a majority of the
arbitrators, "cause" did not exist, the arbitrators shall assess, as part of
11
<PAGE>
their award, all of the arbitration expenses of the Employee (including
reasonable attorneys' fees) and of the arbitrators and the arbitration
proceeding against the Company.
15. ASSIGNMENT
15.1 This Agreement, as it relates to the employment of the Employee, is a
personal contract and the rights and interests of the Employee hereunder may not
be sold, transferred, assigned, pledged or hypothecated.
16. NOTICES
16.1 Any notice required or permitted to be given pursuant to this
Agreement shall be deemed to have been duly given when delivered by hand or sent
by certified or registered mail, return receipt requested and postage prepaid,
overnight mail or courier or telecopier as follows:
If to the Employee:
------------------------
------------------------
Telecopier Number: _______________
with a copy to:
[for Lang and Weinzimer]
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, NY 11501
Attention: William A. Ubert, Esq.
Telecopier Number: (516) 663-6641
[for Certilman and Haft:]
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred S. Skolnik, Esq.
Telecopier Number: (516) 296-7111
12
<PAGE>
If to the Company:
90 Merrick Avenue
East Meadow, New York 11554
Attention: Morton L. Certilman
Telecopier Number: (516) 296-7111
with a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred S. Skolnik, Esq.
Telecopier Number: (516) 296-7111
or at such other address as any party shall designate by notice to the other
party given in accordance with this Paragraph 16.1.
17. GOVERNING LAW
17.1 This Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York applicable to agreements made
and to be performed entirely in New York.
18. WAIVER OF BREACH; PARTIAL INVALIDITY
18.1 The waiver by either party of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. If any provision, or part thereof, of this Agreement shall be held to be
invalid or unenforceable, such invalidity or unenforceability shall attach only
to such provision and not in any way affect or render invalid or unenforceable
any other provisions of this Agreement, and this Agreement shall be carried out
as if such invalid or unenforceable provision, or part thereof, had been
reformed, and any court of competent jurisdiction or arbitrators, as the case
may be, are authorized to so reform such invalid or unenforceable provision, or
part thereof, so that it would be valid, legal and enforceable to the fullest
extent permitted by applicable law.
19. ENTIRE AGREEMENT
19.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and there are no representations,
warranties or commitments except as set forth herein. This Agreement supersedes
13
<PAGE>
all prior agreements, understandings, negotiations and discussions, whether
written or oral, of the parties hereto relating to the subject matter hereof.
This Agreement may be amended, and any provision hereof waived, only by a
writing executed by the party sought to be charged. No amendment or waiver on
the part of the Company shall be valid unless approved by its Board of
Directors.
20. COUNTERPARTS
20.1 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
21. FACSIMILE SIGNATURES
21.1 Signatures hereon which are transmitted via facsimile shall be deemed
original signatures.
22. REPRESENTATION BY COUNSEL; INTERPRETATION
22.1 The Employee acknowledges that he has been represented by counsel in
connection with this Agreement. Accordingly, any rule or law or any legal
decision that would require the interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived by the Employee. The provisions of this Agreement shall be
interpreted in a reasonable manner to give effect to the intent of the parties
hereto.
23. HEADINGS
23.1 The headings and captions under sections and paragraphs of this
Agreement are for convenience of reference only and do not in any way modify,
interpret or construe the intent of the parties or affect any of the provisions
of this Agreement.
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14
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year above written.
EXTECH CORPORATION
By:
-------------------------------------
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<PAGE>
EXHIBIT 4.3(a)
-------------, ----
$-----------
PROMISSORY NOTE
FOR VALUE RECEIVED,_____________ (the "Maker"), having an address as
indicated under his name, hereby promises to pay to the order of EXTECH
CORPORATION, a Delaware corporation ("Extech"), at 90 Merrick Avenue, East
Meadow, New York or at such other place as the holder hereof may from time to
time designate in writing, in immediately available New York funds, the
principal sum of _____________________ THOUSAND DOLLARS ($________), together
with interest on the outstanding principal balance from the date hereof at the
rate of ___ percent (__%) per annum [Wall Street Journal prime rate at time of
execution]. The principal amount of this Note, together with accrued interest
thereon, shall be payable in four (4) equal annual installments commencing one
(1) year from the date hereof and continuing on the anniversary day of the date
hereof of each subsequent year, in such annual amount as shall be necessary to
selfamortize this Note at the end of such four (4) year period [if this Note is
dated later than three (3) years after the Closing Date, then the payment terms
shall be amended so that any payment that would be otherwise due after seven (7)
years from the Closing Date shall be due on such seventh anniversary date];
provided, however, that the amounts due under this Note shall be payable sooner
to the extent of any proceeds received by the Maker from the sale or other
disposition of any shares of Common Stock of Extech on or after the date hereof
(the proceeds being immediately payable to Extech).
The payment of all amounts due under this Note is secured by a pledge of
________ shares of Common Stock of Extech [five times the principal amount of
this Note] owned by the Maker pursuant to a Pledge Agreement of even date
between the Maker and Extech (the "Pledge Agreement").
In the event (a) the Maker shall (i) fail to make any payment due hereunder
and such failure shall continue unremedied for a period of ten (10) days
following the date of written notice of default; (ii) admit in writing his
inability to pay his debts as they mature; (iii) make a general assignment for
the benefit of creditors; (iv) be adjudicated a bankrupt or insolvent; (v) file
a voluntary petition in bankruptcy or a petition or an answer seeking an
arrangement with creditors; (vi) take advantage of any bankruptcy, insolvency or
readjustment of debt law or statute or file an answer admitting the material
allegations of a petition filed against him in any proceeding under any such
law; or (vii) have entered against him a court order approving a petition filed
against him under the Federal Bankruptcy Act; or (b) there shall be a breach of
any representation, warranty, covenant or other agreement set forth in the
Pledge Agreement or that certain Employment Agreement dated _________, 1998
between the Maker and Extech and such breach shall continue unremedied for a
period of fifteen (15) days following the date of written notice thereof, then
and in each and every such event, Extech may, by written notice to the Maker,
declare the entire unpaid principal amount of this Note then outstanding plus
accrued interest to be forthwith due and payable whereupon the same shall become
forthwith due and payable.
<PAGE>
The Maker may prepay the principal amount of this Note, in whole or in
part, from time to time, without premium or penalty, provided that the Maker
pays all interest accrued with regard to the principal prepaid to the date of
prepayment.
If the Maker shall fail to pay when due, whether by acceleration or
otherwise, all or any portion of the principal amount hereof, any such unpaid
amount shall bear interest for each day from the date it was so due until paid
in full at the rate of sixteen percent (16%) per annum, payable on demand.
Notwithstanding anything to the contrary contained in this Note, the rate
of interest payable on this Note shall never exceed the maximum rate of interest
permitted under applicable law.
This Note may not be waived, changed, modified or discharged orally, but
only by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceedings (whether at the trial or appellate level), or should this Note be
placed in the hands of any agent or attorneys for collection upon default or
maturity, the Maker agrees to pay, in addition to all other amounts due and
payable hereunder, all reasonable costs and expenses of collection or attempting
to collect this Note, including reasonable attorneys' fees.
The Maker and any endorsers hereof, for themselves and their respective
representatives, successors and assigns, expressly (a) waive presentment,
protest, notice of dishonor, notice of non-payment, notice of maturity, notice
of protest, diligence in collection, and the benefit of any applicable
exemptions, including, but not limited to, exemptions claimed under insolvency
laws, and (b) consent that Extech may release or surrender, exchange or
substitute any property or other collateral or security now held or which may
hereafter be held as security for the payment of this Note, and/or may release
any guarantor, and/or may extend the time for payment and/or otherwise modify
the terms of payment of any part or the whole of the debt evidenced hereby.
Any notice, demand or request relating to any matter set forth herein shall
be in writing and shall be deemed effective when hand delivered, when mailed,
postage prepaid, by registered or certified mail, return receipt requested, or
by a nationally recognized overnight mail or courier service, or when sent by
facsimile transmission (with transmission confirmation) to any party hereto at
its address stated herein or at such other address of which it shall have
notified the party giving such notice in writing as aforesaid.
Extech shall be entitled to assign all or any portion of his right, title
and interest in and to this Note at his sole discretion without notice to the
Maker, provided that the Maker shall continue to make payments required
hereunder to Extech until he has received notice of change of payee for payments
as provided herein.
2
<PAGE>
Notwithstanding any other provision of this Note, all payments made
hereunder shall be applied first to payment of sums payable hereunder other than
interest and principal, secondly, interest on the principal balance outstanding
hereunder from time to time, and thirdly to principal.
The Maker acknowledges and agrees that the obligations under this Note are
unconditional and are not subject to any defense, counterclaim, or right of
offset or setoff.
This Note shall be governed by, and construed in accordance with, the laws
of the State of New York, excluding conflict of law principles thereof.
The Maker acknowledges that he has been represented by counsel in
connection with this Note. Accordingly, any rule or law or any legal decision
that would require the interpretation of any claimed ambiguities in this Note
against the party that drafted it has no application and is expressly waived by
the Maker. The provisions of this Note shall be interpreted in a reasonable
manner to give effect to the intent of the Maker and Extech.
[ ]
Address: 2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier Number: (516) 735-7379
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\EMPL43A.NOT
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<PAGE>
ACKNOWLEDGMENT
STATE OF NEW YORK )
) ss.:
COUNTY OF NASSAU )
On ____________, ____ before me personally came ______________ to me known,
and known to be the individual described in, and who executed the foregoing
Note, and duly acknowledged to me that he executed the same.
Notary Public
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\EMPL43A.NOT
4
<PAGE>
EXHIBIT 4.3(b)
PLEDGE AGREEMENT, dated ____________, ____, by and between __________ (the
"Pledgor") and EXTECH CORPORATION, a Delaware corporation (the "Pledgee").
WHEREAS, simultaneously herewith, the Pledgee is loaning to the Pledgor the
amount of ___________ Thousand Dollars ($________) and the Pledgor is executing
and delivering to the Pledgee a Promissory Note in such principal amount (the
"Note").
WHEREAS, the Pledgee desires, and the Pledgor is willing, to secure
performance of the Note.
WHEREAS, certain capitalized terms used herein are defined in Section 8
hereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. PLEDGE. The Pledgor hereby grants to the Pledgee, as security for the
performance by the Pledgor of all of his obligations under the Note (the
"Obligations"), a valid and binding first security interest in the Collateral
(as hereinafter defined). The Pledgor has delivered simultaneously herewith to
the Pledgee, and the Pledgee hereby acknowledges receipt of, a certificate
evidencing the Pledged Shares registered in the name of the Pledgor (the
"Pledged Certificate"), accompanied by appropriate stock powers endorsed by the
Pledgor (the "Stock Powers").
2. TERM. This Agreement shall continue in effect until terminated in accordance
with Section 7 hereof.
3. SHARE RIGHTS; CASH DIVIDENDS.
(a) In the event of any change in the Pledged Shares during the term of
this Agreement by reason of any stock dividend, stock split-up, reverse split,
recapitalization, combination, reclassification, exchange of shares, merger,
consolidation or the like, all new, substituted, or additional stock, or other
securities, issued by reason of any such change (the "Adjusted Shares") (the
Pledged Shares and the Adjusted Shares are hereinafter referred to collectively
as the "Shares") shall be retained by or delivered to, as the case may be, and
held by the Pledgee under the terms of this Agreement in the same manner as the
Pledged Shares originally pledged hereunder.
(b) Unless and until the occurrence of a Default (as hereinafter defined),
the Pledgor shall have the right to vote the Shares. Upon the occurrence of a
Default, the Shares shall be registered in the name of the Pledgee and the
Pledgee shall have all incidents of ownership thereof.
(c) Provided that no Default has occurred, any and all cash dividends paid
in respect of the Shares shall be paid to the Pledgor; provided, however, that,
in any event, any extraordinary distributions made in respect of the Shares
shall be retained by the Pledgee and held by it in accordance with the terms
hereof.
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\EMPL43B.PLG
1
<PAGE>
4. REPRESENTATIONS. The Pledgor hereby represents and warrants to the Pledgee
that:
(a) The Pledgor is the sole record and beneficial owner of the Pledged
Shares, free and clear of all liens, pledges, security interests, encumbrances,
restrictions, subscriptions, hypothecations, charges and claims of any kind
whatsoever (collectively, "Liens").
(b) No consents of governmental and other regulatory agencies, foreign or
domestic, or of other parties are required to be received by or on the part of
the Pledgor to enable him to enter into and carry out this Agreement and the
transactions contemplated hereby.
(c) The Pledgor has the power to enter into this Agreement and to carry out
his obligations hereunder. This Agreement constitutes the valid and binding
obligation of the Pledgor, and is enforceable in accordance with its terms.
(d) Neither the execution and delivery of this Agreement nor compliance by
the Pledgor with any of the provisions hereof nor the consummation of the
transactions contemplated hereby will violate or, alone or with notice or the
passage of time, result in the material breach or termination of, or otherwise
give any contracting party the right to terminate, or declare a default under,
the terms of any agreement, understanding or arrangement to which the Pledgor is
a party or by which he or his assets or properties may be bound.
5. COVENANTS.
(a) The Pledgor hereby covenants that from and after the date hereof and
until the Obligations shall have been satisfied in full:
(i) The Pledgor will not grant, create, incur, assume or suffer to
exist any Lien in the Collateral (except for the Lien created hereby).
(ii) The Pledgor will defend the Pledgee's right, title, and security
interest in and to the Collateral against the claims of any person, firm,
corporation or other entity.
(iii) The Pledgor shall at any time and from time to time, upon the
written request of the Pledgee, execute and deliver such other instruments
and documents and do such further acts and things as the Pledgee may
reasonably request in order to effect the purposes of this Agreement.
(b) The Pledgee's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession, under Section 9-207
of the Code or otherwise, shall be to deal with it in the same manner as the
Pledgee deals with similar securities and property for its own account.
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\EMPL43B.PLG
2
<PAGE>
6. DEFAULT.
(a) In the event that the Pledgor fails to pay to the Pledgee any
Obligation when due or there shall otherwise occur an Event of Default (as
defined in the Note) ("Default"), the Pledgee shall have all of the rights and
remedies afforded to secured parties with respect to the Collateral as set forth
in the Code as well as all other rights and remedies granted in the Note and
this Agreement. Without limiting the generality of the foregoing, the Pledgee,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Pledgor (all and each of which demands, defenses,
advertisements and notices are hereby waived), may in such circumstances
forthwith collect, receive, appropriate and realize upon the Collateral, or any
part thereof, and/or may forthwith sell, assign, give an option or options to
purchase or otherwise dispose of and deliver the Collateral or any part thereof
(or contract to do any of the foregoing), in one or more parcels at public or
private sale or sales, upon such terms and conditions and at such prices as it
may deem advisable, for cash or on credit or for future delivery without
assumption of any credit risk. The Pledgee shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold. The
Pledgee shall apply any proceeds from time to time held by it and the net
proceeds of any such sale or other disposition, after deducting all reasonable
costs and expenses of every kind incurred in respect thereof or incidental to
the care or safekeeping of any of the Collateral or in any way relating to the
Collateral or the rights of the Pledgee hereunder, including, without
limitation, reasonable attorneys' fees and disbursements of counsel to the
Pledgee, to the satisfaction in whole or in part of the Obligations, in such
order as the Pledgee may elect and only after such application and after the
payment by the Pledgee of any other amount required by any provision of law,
including, without limitation, Section 9-504 (1)(c) of the Code, need the
Pledgee account for the surplus, if any, to the Pledgor. To the extent permitted
by applicable law, the Pledgor waives all claims, damages and demands he may
acquire against the Pledgee arising out of the lawful exercise by it of any
rights hereunder. Neither the Pledgee nor any of its respective directors,
officers, employees or agents shall be liable for failure to sell or otherwise
dispose of the Collateral or for any delay in doing so. If any notice of a
proposed sale or other disposition of the Collateral shall be required by law,
such notice shall be deemed reasonable and proper if given at least ten (10)
days before such sale or other disposition. In any event, notice of a proposed
sale or other disposition shall be given at least ten (10) days before such sale
or other disposition to the Pledgor and [for Lang: Abraham Weinzimer and for
Weinzimer: Kevin Lang]. The Pledgor shall remain liable for any deficiency if
the proceeds of any sale or other disposition of the Collateral are insufficient
to pay all of the Obligations and any and all costs and expenses of every kind
incurred by the Pledgee with respect to the collection of such deficiency,
including, without limitation, all reasonable fees and disbursements of any
attorneys employed by the Pledgee.
The Pledgor recognizes that the Pledgee may be unable to effect a public
sale of any or all the Collateral by reason of certain restrictions contained in
K:\WPDOC\CORP\EXTECH\DCAP\EXHIBITS\EMPL43B.PLG
3
<PAGE>
the Securities Act of 1933, as amended, and applicable state securities laws or
otherwise, and may be compelled to resort to one or more private sales thereof
to a restricted group of purchasers which will be obliged to agree, among other
things, to acquire such securities for their own account for investment and not
with a view to the distribution or resale thereof. The Pledgor acknowledges and
agrees that any such private sale may result in prices and other terms less
favorable than if such sale were a public sale and agrees that any such private
sale under such circumstances shall not be evidence that it has been made in
other than a commercially reasonable manner.
The Pledgor agrees to use his best efforts to do or cause to be done all
such other acts as may be necessary to make such sale or sales of all or any
portion of the Collateral pursuant to this section valid and binding and in
compliance with any and all other applicable requirements of law.
(b) The rights of the Pledgee hereunder shall not be conditioned or
contingent upon the pursuit by the Pledgee of any right or remedy against the
Pledgor, any other person which may be or become liable in respect of all or any
part of the Obligations or against any collateral security therefor, guarantee
therefor or right of offset with respect thereto. Neither the Pledgee nor any of
its affiliates or representatives shall be liable for any failure to demand,
collect or realize upon all or any part of the Collateral or for any delay in
doing so, nor shall the Pledgee be under any obligation to sell or otherwise
dispose of any Collateral upon the request of the Pledgor or any other person or
to take any other action whatsoever with regard to the Collateral or any part
thereof.
7. TERMINATION OF AGREEMENT. Upon (i) the Pledgor's satisfaction of the
Obligations in full (at which time the Pledgee shall redeliver the Pledged
Certificate and accompanying Stock Powers to the Pledgor), or (ii) the
conclusion of the actions contemplated by Section 6 hereof, this Agreement shall
thereupon terminate.
8. DEFINED TERMS. The following terms shall have the following meanings:
(a) "Code" means the Uniform Commercial Code from time to time in effect in
the State of New York.
(b) "Collateral" means the Pledged Shares and all Proceeds.
(c) "Pledged Shares" means _____________ thousand (________) shares of
Common Stock of the Pledgee [five times the principal amount of the Note],
together with any and all shares, stock certificates, options or rights of any
nature whatsoever that may be issued or granted to the Pledgor with regard
thereto, in substitution or replacement thereof, as a conversion thereof, in
exchange therefor or otherwise in respect thereof.
(d) "Proceeds" means all "proceeds" as such term is defined in Section
9-306(1) of the Code on the date hereof and, in any event, shall include,
without limitation, all dividends or other income from the Pledged Shares,
collections thereon and distributions with respect thereto.
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<PAGE>
9. MISCELLANEOUS.
(a) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective legal representatives, successors and
assigns.
(b) This Agreement contains the entire agreement and understanding between
the parties in respect of the subject matter hereof, and cannot be modified,
changed, discharged or terminated except by an instrument in writing, signed by
the party against whom enforcement of any modification, change, discharge or
termination is sought.
(c) A waiver of the breach of any term or condition of this Agreement shall
not be deemed to constitute a waiver of any other breach of the same or any
other term or condition.
(d) This Agreement will be construed and governed in accordance with the
laws of the State of New York, excluding choice of law rules thereof.
(e) All notices or other communications required or permitted hereunder
shall be sufficiently given if delivered by hand, or sent by certified mail,
return receipt requested, postage prepaid, facsimile transmission or overnight
mail or courier, addressed as follows:
If to the Pledgor:
c/o Dealers Choice Automotive Planning Inc.
2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier Number: (516) 735-7379
with a copy to:
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
Attention: William A. Ubert, Esq.
Telecopier Number: (516) 663-6643
If to the Pledgee:
90 Merrick Avenue
East Meadow, New York 11554
Attention: President
Telecopier Number: (516) 296-7111
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<PAGE>
with a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred Skolnik, Esq.
Telecopier Number: (516) 296-7111
(f) The Pledgor waives any and all notice of the extension or modification
of the terms of the Note.
(g) In the event that the Collateral or any portion thereof is released to
the Pledgor and any payments of, or proceeds of any security for, the
Obligations, or any part thereof, are subsequently invalidated, declared to be
fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law,
common law or equitable cause, then the Pledgor shall redeliver the Collateral
and Stock Powers to the Pledgee and, until so redelivered, shall hold the
Collateral and Stock Powers as agent of, and in trust for, the Pledgee.
(h) If any provision hereof is declared to be invalid and unenforceable,
then, to the fullest extent permitted by law, the other provisions hereof shall
remain in full force and effect and shall be liberally construed in favor of the
Pledgee in order to carry out the intentions of the parties hereto as nearly as
may be possible.
(i) Each party acknowledges that he or it has been represented by counsel
in connection with this Agreement. Accordingly, any rule or law or any legal
decision that would require the interpretation of any claimed ambiguities in
this Agreement against the party that drafted it has no application and is
expressly waived by the parties. The provisions of this Agreement shall be
interpreted in a reasonable manner to give effect to the intent of the parties
hereto.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
[---------------]
EXTECH CORPORATION
By:
Morton L. Certilman,
President
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<PAGE>
EXHIBIT 7.9
RESTRICTIVE COVENANT AGREEMENT
____________, 1998
EXTECH Corporation
90 Merrick Avenue
East Meadow, New York 11554
Dear Sirs:
The undersigned has entered into an agreement, dated March __, 1998 (the
"Agreement"), with, among others, EXTECH Corporation ("EXTECH") with regard to,
among other things, the acquisition by EXTECH of all the outstanding Common
Shares of Dealers Choice Automotive Planning Inc., all of the outstanding Common
Shares of the Affiliated Companies (as defined in the Agreement) and certain of
the outstanding Common Shares of the Joint Ventures (as defined in the
Agreement). The Agreement provides that, as a condition to EXTECH's obligation
to consummate the transactions contemplated thereby, it shall have received this
letter from the undersigned.
All capitalized terms used herein that are defined in the Agreement shall
have the meanings ascribed to them therein.
1. In order to induce EXTECH to consummate the transactions contemplated by
the Agreement, the undersigned hereby covenants and agrees with EXTECH as
follows:
(i) The undersigned will not at any time within five (5) years of the
date hereof, without the prior written consent of EXTECH (which consent the
undersigned acknowledges and agrees will require the approval of the Board
of Directors of EXTECH), directly or indirectly, anywhere within five (5)
miles of the location of any office of any of the DCAP Entities or any
franchisee thereof, whether individually or as a principal, officer,
employee, partner, member, manager, director or agent of, or consultant or
independent contractor to, any entity, other than on behalf of or for the
benefit of EXTECH, any of the DCAP Entities or any entity over which EXTECH
has control:
(a) engage or participate in a business which is similar to or
competitive with, directly or indirectly, the DCAP Business and shall
not make any investments in any such similar or competitive entity,
except that the foregoing shall not restrict the undersigned from
acquiring up to one percent (1%) of the outstanding voting stock of
any entity whose securities are listed on a stock exchange or Nasdaq;
(b) cause or seek to persuade any director, officer, employee,
customer, client, account, agent or supplier of, or consultant or
independent contractor to, any DCAP Entity, or others with whom any
1
<PAGE>
DCAP Entity has had a business relationship (collectively, "Business
Associates"), to discontinue or materially modify the status,
employment or relationship of such person or entity with such DCAP
Entity following the date hereof, or to become employed in any
activity similar to or competitive with the business activities of any
DCAP Entity;
(c) cause or seek to persuade any prospective customer, client,
account or other Business Associate of any DCAP Entity (which at the
date hereof was then actively being solicited by such DCAP Entity) to
determine not to enter into a business relationship with such DCAP
Entity or to materially modify its contemplated business relationship;
(d) hire, retain or associate in a business relationship with,
directly or indirectly, any director, officer or employee of any DCAP
Entity; or
(e) solicit or cause or authorize to be solicited, or accept, for
or on behalf of the undersigned or any third party, any business from,
or the entering into a business relationship with, (I) others who are,
or were within one (1) year prior to the date hereof, a customer,
client, account or other Business Associate of any DCAP Entity or (II)
any prospective customer, client, account or other Business Associate
of any DCAP Entity which at or about the date hereof was actively
being solicited by such DCAP Entity.
(ii) The foregoing restrictions shall cease to apply in the event (a)
the undersigned's employment with EXTECH is terminated by EXTECH without
cause (as such term is defined in that certain Employment Agreement of even
date between EXTECH and the undersigned), (b) EXTECH defaults in its
obligation to make any payments provided for in Paragraph 11.3 of the
Employment Agreement and (c) such default continues for a period of twenty
(20) days following receipt by EXTECH of written notice thereof from the
undersigned.
(iii) The restrictive covenants contained in this letter are material
elements of the consideration to be paid by EXTECH under the Agreement and
are reasonable and properly required for the adequate protection of the
business interests being acquired thereby.
(iv) The covenants contained herein are separate and independent from
any other covenants contained in any other agreement and may be enforced
irrespective of any other such covenants.
(v) If any provision, or part thereof, of this letter shall be held to
be invalid or unenforceable, such invalidity or unenforceability shall
attach only to such provision and not in any way affect or render invalid
or unenforceable any other provision of this letter, and this letter shall
be carried out as if such invalid or unenforceable provision, or part
thereof, had been reformed, and any court of competent jurisdiction or
arbitrators, as the case may be, are authorized to so reform such invalid
or unenforceable provision, or part thereof, so that it would be valid,
legal and enforceable to the fullest extent permitted by applicable law.
2
<PAGE>
2. The parties recognize that, because of the nature of the subject matter
of this letter, it would be impracticable and extremely difficult to determine
actual damages to EXTECH in the event of a breach or threatened breach of any
provision of this letter by the undersigned. Accordingly, in such event, EXTECH
shall have the following rights and remedies:
(i) The right and remedy to have the provisions of this letter
specifically enforced by any court or arbitrators having equity
jurisdiction, by way of injunctive relief or otherwise, it being
acknowledged and agreed that any such breach or threatened breach will
cause irreparable injury to EXTECH, and that money damages will not provide
an adequate remedy to EXTECH;
(ii) The right and remedy to require the undersigned to account for
and pay over to EXTECH all profits derived or received by the undersigned
as the result of any transactions constituting a breach of any of the
provisions of Section 1, and the undersigned hereby agrees to account for
and pay over such profits to EXTECH; and
(iii) The right to recover attorneys' fees incurred in any action or
proceeding in which it seeks to enforce its rights hereunder.
Each of the rights and remedies enumerated above shall be independent
of the other, and shall be severally enforceable, and all of such rights
and remedies shall be in addition to, and not in lieu of, any other rights
and remedies available to EXTECH under law or in equity.
3. The parties hereto intend to and hereby confer jurisdiction to enforce
the covenants contained in Section 1 upon the courts of any jurisdiction within
the geographical scope of such covenants (a "Jurisdiction"). In the event that
the courts of any one or more of such Jurisdictions shall hold such covenants
unenforceable by reason of the breadth of their scope or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
affect EXTECH's right to the relief provided above in the courts of any other
Jurisdiction, as to breaches of such covenants in such other respective
Jurisdictions, the above covenants as they relate to each Jurisdiction being,
for this purpose, severable into diverse and independent covenants.
4. This letter shall be construed, and the legal relations between the
parties hereto determined, in accordance with the laws of the State of New York
applicable to agreements made and to be performed entirely within the State of
New York.
5. The waiver by EXTECH of a breach of any provision of this letter shall
not operate or be construed as a waiver of any subsequent breach. No waiver
shall be effective unless in writing, executed by EXTECH and approved by
EXTECH's Board of Directors.
6. This Agreement supersedes all prior agreements, understandings,
negotiations and discussions, whether written or oral, of the undersigned and
3
<PAGE>
EXTECH relating to the matters set forth herein. This letter may be amended only
by a writing executed by the undersigned and EXTECH. No amendment on the part of
EXTECH shall be valid unless approved by its Board of Directors.
Very truly yours,
K:\WPDOC\CORP\EXTECH\DCAP\AGREEMEN\RESTCOV3.FRM
4
<PAGE>
Exhibit 7.13
HAROLD L. KESTENBAUM, P.C.
Attorney At Law
585 Stewart Avenue
Suite 700
Garden City, New York 11530
(516) 745-0099
Fax (516) 745-6642
May 8, 1998
EXTECH Corporation
90 Merrick Avenue
East Meadow, New York 11554
Gentlemen:
I have acted as counsel to DCAP Management Inc. (the "Company") since on or
about November of 1992 in connection with the Company's offerings and sales of
"DCAP Insurance" franchises (the "Franchises") to various entities. To my
knowledge, the Company is the only entity that has ever offered or sold
Franchises. I have been advised that Kevin Lang ("Lang") and Abe Weinzimer
("Weinzimer") wish to enter into an agreement with EXTECH Corporation
("EXTECH"), Morton L. Certilman and Jay M. Haft (the "Agreement") pursuant to
which, among other matters, Lang and Weinzimer are to sell to EXTECH all of the
issued and outstanding Common Stock of the Company. I have been advised that
EXTECH has required my opinion with respect to the Company and the Franchises as
a condition to its execution, delivery and consummation of the Agreement.
All capitalized terms used herein which are defined in the Agreement shall
have the meanings ascribed to them therein.
In my capacity as such counsel to the Company, I have examined all
documents relating to the Company's registration of the offer and sale of
franchises in the State of New York (the "Registration"), and all relevant laws,
rules and regulations pertaining thereto, including, without limitation, the
Franchise Sales Act (the "Act") and all relevant regulations thereunder, and
relevant Federal Trade Commission rules relating to franchising.
I am of the opinion that:
1. The Company's Registration was current, effective and in compliance with
all laws, regulations and other requirements of all governmental and other
regulatory bodies with respect to franchises from October 24, 1994 through
October 31, 1997, and except as set forth in paragraph 2 of this opinion, since
<PAGE>
EXTECH Corporation
May 8, 1998
Page 2
such date. To my knowledge, the Company did not offer or sell Franchises before
October 24, 1994.
2. From October 31, 1997 through May 5, 1998, the Company's Registration
was not in compliance with the requirements of the Act. During such time period,
the Company offered and sold six Franchises in New York to various individuals
(the "Franchisees"), one such sale being an exempt sale under the Act.
Notwithstanding that such offers and sales were made at a time when the Company
was not in compliance with the requirements of the Act, the Company subsequently
filed with all necessary governmental authorities all documentation required to
properly make rescission offers to the various Franchisees with respect to the
improperly offered Franchises, all of the Franchisees duly rejected the
Company's rescission offer, none of the Franchisees has any continuing right to
rescind his purchase of a Franchise under the Act and the Company has no
obligation or liability to any person, entity or governmental body in connection
with any of the foregoing under the Act.
3. The Company's Registration has been current, effective and in compliance
with the Act and all laws, regulations and other requirements of all
governmental and other regulatory bodies with respect to franchises since May 5,
1998 and through the date hereof.
4. To my knowledge, the Company has not offered or sold any Franchises to
any Person residing or doing business in the State of New Jersey or otherwise
outside the State of New York.
5. Based upon representations made to me by Lang and Weinzimer that the fee
paid by a joint venture partner was an additional capital contribution to such
joint venture, then neither the establishment nor operation of the entities (the
"Joint Ventures") that utilize the "DCAP" name and are owned one-half by Lang
and Weinzimer, the two shareholders of the Company, on the one hand, and
one-half by the operator(s) of the Joint Venture, on the other hand, required or
requires any filings with the New York State Department of Law, or other
governmental or other regulatory body with respect to franchising, or was or is
otherwise subject to any laws, rules or regulations of the states of New York,
or New Jersey or the United States of America with respect to franchising.
However, the foregoing is only my opinion. There can be no assurance that any of
the above mentioned governmental authorities would concur with this opinion. The
creation of the Joint Ventures and whether they are franchises or not, is an
issue that would be subject to interpretation by the aforesaid governmental
agencies, thereby qualifying my opinion regarding same. Whether or not any Joint
Venture is deemed to be a franchise that is subject to the Act, any private
right of action for rescission under Section 691.2 of the Act (which is the sole
remedy under the Act) with respect to such Joint Venture would be time barred
under the Act as of the date that is three years from the date of the execution
of the agreements relating to the establishment of such Joint Venture. Under
Section 691.2 of the Act, in the event of a rescission the sole remedy is the
return of consideration paid the franchisor, less the amount earned by the
franchisee from the franchise. The New York State Department of Law may not
bring a civil action under Section 691.2 of the Act with regard to a violation
of the Act.
<PAGE>
EXTECH Corporation
May 8, 1998
Page 3
EXTECH Corporation May 8, 1998 Page 3 6. No consent of any Body or any
other Person is required to be received by or on the part of the Company, with
respect to Franchises, to enable the Shareholders to enter into and carry out
the Agreement and the transactions contemplated thereby, including, without
limitation, the transfer to EXTECH of all of the right, title and interest of
the Shareholders in and to outstanding shares of Common Stock of the Company.
7. To the best of my knowledge, there are no Actions relating to the
Company or any of its assets or business pending or threatened, or any order,
injunction, order or decree outstanding, against the Company or against or
relating to any of its assets or business. To the best of my knowledge, the
Company is not in violation of any law, regulation, ordinance, order,
injunction, decree, award, or any other requirements of any governmental or
other regulatory body, court or arbitrator relating to Franchises.
8. Neither the execution and delivery of the Agreement nor compliance by
either of the Shareholders with any of the provisions thereof, nor the
consummation of the transactions contemplated thereby, will (a) violate, alone
or with notice or the passage of time, or both, result in the breach or
termination of, or otherwise give any party the right to terminate, or declare a
Default under the terms of any Contract with respect to Franchises, known to me
to which the Company is a party, or (b) violate any law or regulation of any
jurisdiction relating to the Company with respect to Franchises.
Very truly yours,
/s/ Harold L. Kestenbaum
Harold L. Kestenbaum
HLK:ljw
<PAGE>
Exhibit 7.14
AGREEMENT FOR PURCHASE OF SHARES
This AGREEMENT dated as of the ___ day of __________, 1998 by and among
KEVIN LANG ("Lang"), ABRAHAM WEINZIMER ("Weinzimer" and together with Lang, the
"Shareholders") and EXTECH CORPORATION, a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, the Shareholders are each the owners of shares of the Company's
Common Stock, $.01 par value ("Common Shares"), and may in the future acquire,
through direct or beneficial ownership, additional Common Shares;
WHEREAS, Lang and Weinzimer are the owners of insurance policies on their
respective lives in the amounts of $______ and $_______, respectively
(individually, a "Policy" and collectively, the "Policies"), and are
concurrently assigning ownership of the Policies to the Company;
WHEREAS, __________ and __________ are currently the respective
beneficiaries of the Policies and, upon the assignment of the Policies to the
Company, the Company shall become the beneficiary thereof;
WHEREAS, Lang and Weinzimer hereby represent that the annual premiums on
their respective Policies are $_________ and $_____________ (the "Current
Premiums"); and
WHEREAS, the Company and the Shareholders have agreed that the Company
shall purchase a certain number of Common Shares from the estates of the
Shareholders following the death of either or both of them, upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
1
<PAGE>
1. Purchase of Shares Upon Death of a Shareholder.
(a) In the event of the death of either or both of the Shareholders (a
"Deceased Shareholder"), the estate of the Deceased Shareholder (the
"Estate") shall sell to the Company, and the Company shall purchase from
the Estate, such number of Common Shares as equals the lesser of (i) the
quotient of the proceeds of the particular Policy (the "Insurance
Proceeds") divided by the Fair Market Value per Share (as such term is
hereinafter defined), rounded to the nearest whole number of Shares or (ii)
the number of Shares owned, beneficially or of record, by the Deceased
Shareholder (the "Shares"). The purchase price per Share shall be the Fair
Market Value per Share (the "Purchase Price").
(b) Upon the appointment of a legal representative for a Deceased
Shareholder (the "Legal Representative"), the Legal Representative shall
give notice of such fact to the Company (the "Notice of Appointment"). The
purchase and sale provided for in paragraph (a) shall take place at the
offices of the Company thirty (30) days following the later of (i) receipt
of the Notice of Appointment or (ii) receipt of the Insurance Proceeds, or
at such other place or on such other date as the parties may agree upon
(the "Closing").
(c) At the Closing, the Purchase Price shall be paid by the Company to
the Estate by certified check or wire transfer against delivery of
certificates representing the Shares, duly endorsed or accompanied by stock
powers duly executed, and accompanied by evidence that all transfer taxes
with respect thereto have been paid. At the Closing, the Legal
Representative shall represent to the Company that (i) he is duly
authorized to sell the Shares to the Company and (ii) the Shares are held
2
<PAGE>
by the Estate, and pursuant to the purchase and sale, the Estate will
deliver good title to the Shares, free and clear of any and all liens,
pledges, security interests, claims, rights, options and other encumbrances
(collectively "Liens").
(d) The Company's obligation to purchase the Shares shall be
conditioned upon its receipt of the Insurance Proceeds. If the Insurance
Proceeds shall exceed the Purchase Price for the Shares, the balance of
said proceeds shall be and remain the property of the Company.
(e) Notwithstanding the foregoing, if a Deceased Shareholder shall be
indebted to the Company at the time of his death, the amount of such debt
shall first be deducted from the amount payable to his Estate hereunder.
2. Determination of Fair Market Value. For purposes hereof, Fair Market
Value per Share shall be deemed to be the Closing Price (as hereinafter defined)
for the Company's Common Shares on the business day immediately preceding the
date of the Shareholder's death. The Closing Price for any day shall be the last
sale price regular way or, in case no last sale information is available for
such day, the average of the last reported bid and asked prices regular way for
such day, in either case on the principal national securities exchange on which
the Common Shares are listed or admitted to trading, or if not listed or
admitted to trading on such exchange, as reported by NASDAQ for such day, or, if
the Common Shares are not listed on NASDAQ, as reported by the NASD OTC
Electronic Bulletin Board (the "Bulletin Board") for such day, or, if not listed
on the Bulletin Board, the average of the highest reported bid and lowest
reported asked prices as reported by the National Quotation Bureau, LLC, or
other similar organization if such organization is no longer reporting such
information, for such day, or if none of the foregoing is so available, Fair
Market Value per Share for such day shall be determined in good faith by the
Board of Directors of the Company.
3
<PAGE>
3. Life Insurance Policies. Each Shareholder hereby represents and
warrants to the Company that he owns his respective Policy free and clear
of all Liens. The Shareholders hereby assign to the Company all of their
right, title and interest in and to the respective Policies, free and clear
of all Liens. The Company hereby agrees to maintain in effect during the
respective Shareholder's Employment Period (as such term is defined in the
respective Shareholder's Employment Agreement with the Company of even
date), at its sole cost and expense, the respective Policies (provided that
the premiums with respect thereto do not exceed the Current Premiums). The
Company shall be the owner and beneficiary of each Policy.
4. Notices. Any and all notices or other communications or deliveries
required or permitted to be given or made pursuant to any of the provisions
of this Agreement shall be deemed to have been duly given or made for all
purposes when in writing and hand delivered or sent by certified or
registered mail, return receipt requested and postage prepaid, overnight
mail, nationally recognized overnight courier or telecopier as follows:
If to the Company:
90 Merrick Avenue
East Meadow, New York 11554
Attention: Morton L. Certilman, Chairman of the Board
Telecopier Number: (516) 296-7111
With a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred Skolnik, Esq.
Telecopier Number: (516) 296-7111
4
<PAGE>
If to either Shareholder:
c/o DCAP
2545 Hempstead Turnpike
Suite 100
East Meadow, New York 11554
Telecopier: (516) 735-7379
With a copy to:
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
Attention: William A. Ubert, Esq.
Telecopier: (516) 663-6643
or at such other address as any party may specify by notice given to the
other party in accordance with this Section 4.
5. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in such state.
6. Entire Agreement. This Agreement contains the entire agreement among the
parties with respect to the subject matter hereof and supersedes any and all
prior written or oral understandings with respect to the subject matter hereof.
7. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the legal representatives, successors and assigns of the
parties hereto.
8. Modification. This Agreement may be modified only by a written
instrument executed by the Company and the respective Shareholder whose Shares
are affected thereby.
9. Further Assurances. Each of the Shareholders shall execute and deliver
such additional instruments and documents as the Company may reasonably request
in order to carry out the provisions of this Agreement.
5
<PAGE>
10. Facsimile Signatures. Signatures hereon which are transmitted via
facsimile shall be deemed original signatures.
11 Representation by Counsel; Interpretation. Each Shareholder and the
Company acknowledges that he or it has been represented by counsel in connection
with this Agreement and the transactions contemplated hereby. Accordingly, any
rule or law or any legal decision that would require the interpretation of any
claimed ambiguities in this Agreement against the party that drafted it has no
application and is expressly waived by the parties. The provisions of this
Agreement shall be interpreted in a reasonable manner to give effect to the
intent of the parties hereto.
6
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EXTECH CORPORATION
By:
Morton L. Certilman
Chairman of the Board
Kevin Lang
Abraham Weinzimer
K:\WPDOC\CORP\EXTECH\DCAP\CLOSING\SHARE2.AGT
7
<PAGE>
EXHIBIT 8.7
STOCK OPTION AGREEMENT, dated as of ___________, 1998, between EXTECH
CORPORATION, a Delaware corporation (the "Company"), and _____________ (the
"Optionee").
WHEREAS, simultaneously herewith, the Company is entering into an
Employment Agreement with the Optionee pursuant to which the Optionee is to
perform certain employment duties and services for the Company; and
WHEREAS, the Company desires to provide to the Optionee an additional
incentive to promote the success of the Company.
NOW, THEREFORE, in consideration of the foregoing, the Company hereby
grants to the Optionee the right and option to purchase Common Shares of the
Company under and pursuant to the terms and conditions of the Company's Amended
and Restated 1990 Stock Option Plan (the "Plan") and upon the following terms
and conditions:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the right and
option (the "Option") to purchase up to __________ Thousand (__,000) [Lang -
200,000; Weinzimer - 200,000; Certilman - 100,000; Haft - 100,000] Common Shares
of the Company (the "Option Shares") during the following periods:
(a) All or any part of _________ Thousand (__,000) [one-half] Common
Shares may be purchased during the period commencing on the first
anniversary of the date hereof and terminating at 5:00 P.M. on the fifth
anniversary of the date hereof (the "Expiration Date").
(b) All or any part of an additional ___________ Thousand (__,000)
[one-half] Common Shares may be purchased during the period commencing on
the second anniversary of the date hereof and terminating at 5:00 P.M. on
the Expiration Date.
2. NATURE OF OPTION. The Option is intended to meet the requirements of
Section 422 of the Internal Revenue Code of 1986, as amended, relating to
"incentive stock options".
3. EXERCISE PRICE. The exercise price of each of the Option Shares shall be
________ ($___) [110% of fair market value, as defined in the Plan, on the date
of grant] (the "Option Price").
4. EXERCISE OF OPTIONS. The Option shall be exercised in accordance with
the provisions of the Plan. As soon as practicable after the receipt of notice
of exercise and payment of the Option Price as provided for in the Plan, the
Company shall tender to the Optionee a certificate issued in the Optionee's name
evidencing the number of Option Shares covered thereby.
5. TRANSFERABILITY. The Option shall not be transferable other than by will
<PAGE>
or the laws of descent and distribution and, during the Optionee's lifetime,
shall not be exercisable by any person other than the Optionee.
6. INCORPORATION BY REFERENCE. The terms and conditions of the Plan are
hereby incorporated by reference and made a part hereof.
7. NOTICES. Any notice or other communication given hereunder shall be
deemed sufficient if in writing and delivered personally or sent by facsimile
transmission, overnight mail or courier or registered or certified mail, return
receipt requested, postage prepaid, addressed to the Company at 90 Merrick
Avenue, East Meadow, New York 11554, Attention: Chief Executive Officer (fax
number: (516) 296-7111), and to the Optionee at the address set forth below or
to such other address as either party may hereafter designate in writing to the
other party in accordance with the provisions hereof. Notices shall be deemed to
have been given on the date of mailing or transmission, except notices of change
of address, which shall be deemed to have been given when received.
8. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and assigns.
9. ENTIRE AGREEMENT. This Agreement, together with the Plan, contains the
entire understanding of the parties hereto with respect to the subject matter
hereof and may be modified only by an instrument executed by the party sought to
be charged. No amendment on the part of the Company shall be valid unless
approved by its Board of Directors.
10. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, excluding choice of law
rules thereof.
11. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but both of which
together shall constitute one and the same instrument.
12. FACSIMILE SIGNATURES. Signatures hereon which are transmitted via
facsimile shall be deemed original signatures.
13. REPRESENTATION BY COUNSEL; INTERPRETATION. The Optionee acknowledges
that he has been represented by counsel in connection with this Agreement.
Accordingly, any rule or law or any legal decision that would require the
interpretation of any claimed ambiguities in this Agreement against the party
that drafted it has no application and is expressly waived by the Optionee. The
provisions of this Agreement shall be interpreted in a reasonable manner to give
effect to the intent of the parties hereto.
14. HEADINGS. The headings and captions under sections and paragraphs of
this Agreement are for convenience of reference only and do not in any way
2
<PAGE>
modify, interpret or construe the intent of the parties or affect any of the
provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
EXTECH CORPORATION
By:
Address
Fax Number
K:\WPDOC\CORP\EXTECH\DCAP\AGREEMEN\STKOPTN1.FRM
3
<PAGE>
EXTECH Corporation
90 Merrick Avenue
East Meadow, New York 11554
September 9, 1998
Kevin Lang
Abraham Weinzimer
c/o Dealers Choice Automotive
Planning Inc.
2545 Hempstead Turnpike
East Meadow, NY 11554
Morton L. Certilman
90 Merrick Avenue
East Meadow, NY 11554
Jay M. Haft
c/o Parker, Duryee, Rosoff & Haft
529 Fifth Avenue, 8th Floor
New York, NY 10017
Gentlemen:
Reference is made to that certain Agreement, dated as of May 8, 1998, by
and among EXTECH Corporation, Morton L. Certilman, Jay M. Haft, Kevin Lang and
Abraham Weinzimer (the "Agreement").
All capitalized terms used but not defined herein shall have the respective
meanings ascribed to them in the Agreement.
Each of the parties to the Agreement hereby agrees to the following
amendments to the Agreement:
(i) The number of Common Shares of EXTECH that each of Messrs. Certilman
and Haft shall be granted the right and option to purchase shall be
225,000 and all references in the Agreement and the exhibits and
schedules thereto, including, without limitation, Section 9.2 of
Exhibit 7.8 (Employment Agreement ) and Section 1 of Exhibit 8.7
(Stock Option Agreement), are hereby amended accordingly.
(ii) EXTECH acknowledges receipt of the preliminary unaudited combined
balance sheet of the DCAP Entities as of June 30, 1998 and the
preliminary unaudited combined financial statements of the DCAP
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<PAGE>
Entities for the six month period then ended attached hereto as
Schedule 1. EXTECH acknowledges that such financial statements are
subject to normal year-end audit adjustments, which Lang and Weinzimer
represent will not be material. The receipt of the foregoing shall not
be construed as a limitation or waiver of any rights that EXTECH may
have under the Agreement with respect thereto.
(iii)Lang and Weinzimer acknowledge receipt of EXTECH's Quarterly Report
on Form 10-QSB for the period ended June 30, 1998. Lang and Weinzimer
acknowledge that such financial statements are subject to year-end
audit adjustments, which EXTECH represents will not be material. The
receipt of the foregoing shall not be construed as a limitation or
waiver of any rights that Lang or Weinzimer may have under the
Agreement with respect thereto.
(iv) EXTECH consents to the following:
(a) the sale by DCAP Garden City Park, Inc ("GCP") of its books of
account upon the terms set forth on Schedule 2 attached hereto;
(b) the acquisition by GCP of the 50% interest of Peter Gazzo therein
upon the terms set forth on Schedule 2 attached hereto (GCP to be
moved from Schedule B to Schedule A to the Agreement);
(c) the contemplated acquisition by DCAP or DCAP White Plains, Inc.
("WP") or White Plains Agency, Inc. ("WPA") of the 50% interest
of Fred and Helene Small in WP and WPA upon the terms set forth
on Schedule 2 attached hereto;
(d) the contemplated sale by DCAP Oceanside, Inc. ("Oceanside") of
its books of account upon the terms set forth on Schedule 2
attached hereto;
(e) the taking of the other actions set forth on Schedule 2 attached
hereto;
(f) the addition of DCAP Income Tax Services, Inc. to Schedule A to
the Agreement as an entity wholly owned by Lang and Weinzimer;
and
(g) the granting of additional DCAP franchises, the closing by one or
more of the DCAP Entities of their respective store locations and
the sale by one or more of the DCAP Entities of their respective
books of account upon terms reasonably satisfactory to EXTECH.
(v) Lang and Weinzimer consent to the following:
(a) the issuance and sale by EXTECH of 1,486,893 shares of Common
2
<PAGE>
Stock to Eagle Insurance Company ("Eagle") at a purchase price of
$.67 per share (an aggregate of $996,218.31) pursuant to the
terms and conditions of a Subscription Agreement substantially in
the form of the draft thereof dated September 2, 1998 (the "Eagle
Agreement"), such issuance and sale to occur concurrently with
the Closing of the Agreement;
(b) an increase in the size of the Board of Directors of EXTECH at
the Closing of the Agreement to five and the appointment thereto
of a nominee designated by Eagle (which nominee shall be either
William Wallach or Robert Wallach);
(c) the agreement by EXTECH to nominate as a director thereof, during
the five year period following the closing of the Eagle
Agreement, one person designated by Eagle (which nominee shall be
either William Wallach or Robert Wallach) provided that Eagle
remains the beneficial owner of at least 1,000,000 shares of
Common Stock of EXTECH (subject to adjustment for stock splits,
reverse stock splits and the like);
(d) the adoption by the Board of Directors of EXTECH, without
approval by the stockholders of EXTECH, of a By-Law provision to
the effect set forth in clause (ii)(b) of the definition of
"Stockholder Approval" in the Agreement; and
(e) the adoption by the Board of Directors of EXTECH, without
approval by the stockholders of EXTECH, of a By-Law provision to
the effect that, in order to (i) terminate the employment of a
person who is an officer and director of EXTECH (including,
without limitation, the Chairman of the Board, Vice Chairman of
the Board, President and Executive Vice President of EXTECH) and
who is a party to an employment agreement with EXTECH or (ii)
elect not to extend the term thereof, then (x) the approval of
the Board of Directors shall be required and (y) (I) if the
termination is based upon a claim of cause, the approval of a
majority of all of the members (including, for purposes of
determining the number of members of the Board, the subject
employee, if a Board member) shall be required and (II) if the
termination is not based upon a claim of cause, or if the Company
desires to elect not to extend the term of the particular
employment agreement, the approval of seventy-five percent (75%)
of all of the members (including, for purposes of determining the
number of members of the Board, the subject employee, if a Board
member) (rounded to the nearest integer) shall be required.
(vi) Paragraph (b) and (c) of Section 13.1 of the Agreement is amended to
substitute "December 31, 1998" for "the four month anniversary of the
date hereof."
3
<PAGE>
(vii)Section 15.6 of the Agreement is amended to include the following
addresses for Certilman and Haft:
If to Certilman:
c/o Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Telecopier Number: (516) 296-7111
With a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred Skolnik, Esq.
Telecopier Number: (516) 296-7111
If to Haft:
c/o Parker, Duryee, Rosoff & Haft
529 Fifth Avenue, 8th Floor
New York, New York 10017
Telecopier Number: (212) 972-9487
With a copy to:
Certilman Balin Adler & Hyman, LLP
90 Merrick Avenue
East Meadow, New York 11554
Attention: Fred Skolnik, Esq.
Telecopier Number: (516) 296-7111
Except as amended hereby, the provisions of the Agreement shall continue in
full force and effect.
Reference is also made to those certain Promissory Notes of DCAP dated
November 26, 1997, March 20, 1998 and May 8, 1998 payable to the order of EXTECH
in the principal amounts of $325,000, $114,000 and $311,000, respectively, as
amended (collectively, the "Notes"). The parties hereto hereby agree that the
respective principal amounts of the Notes, together with accrued interest as
provided for therein, shall be due and payable on December 31, 1998 (subject to
acceleration as provided for in the respective Notes). Except as amended hereby,
the Notes shall continue in full force and effect in accordance with their
4
<PAGE>
respective terms and EXTECH shall not be deemed to have waived or otherwise
limited any of its rights with respect thereto.
If the foregoing accurately sets your understanding, please so indicate by
signing in the space provided below.
Very truly yours,
EXTECH Corporation
By:__________________________
Morton L. Certilman, President
Agreed:
- -----------------------------
Morton L. Certilman
- -----------------------------
Jay M. Haft
- ---------------------------
Kevin Lang
- ---------------------------
Abraham Weinzimer
K:\WPDOC\CORP\EXTECH\DCAP\AGREEMEN\AGREEAM3.998
5
<PAGE>
Schedule 2
GCP - Sale of Books of Account
Purchase price of $85,000, payable to the extent of $20,000 in cash and the
balance of $65,000 by the delivery to GCP of a promissory note (the "$65,000
Note") that provides for interest at the rate of 8% per annum and the payment of
36 equal monthly installments of principal and interest (subject to acceleration
to the extent of the receipt of commission payments arising out of or generated
by such book of accounts).
GCP- Acquisition from Gazzo
Purchase price equal to $32,500 less an amount equal to one-half of all
liabilities of GCP (such purchase price being payable only to the extent of
monies received by GCP pursuant to the $65,000 Note and only after the receipt
by GCP pursuant to the $65,000 Note of an amount equal to all of its
liabilities).
WP and WPA - Acquisition from Smalls
Aggregate purchase price of $125,000 payable, with interest at the rate of
9% per annum, in 60 equal monthly installments of principal and interest
(subject to any obligation of DCAP being non-recourse).
Oceanside - Sale of Books of Account
Purchase price equal to commission payments arising out of or generated by
transferred books of account for one year period following closing (with a
minimum purchase price of $40,000).
Changes in Employment Arrangements
Stuart Greenvald - Promotion to sales manager with salary and perks
increased by an aggregate of $25,000
Andrew Lerner - Promotion to Regional Manager
Kathleen Cerrochi - Promotion to Regional Manager
Allen Bellinger - Promotion to Regional Manager with $10,000
increase in salary
New Franchise Locations
Sunset Park, Brooklyn
Lawrence
Riverhead
Store Closure
Rego Park
K:\WPDOC\CORP\EXTECH\DCAP\AGREEMEN\AGREEAM3.998
6
<PAGE>
EXTECH Corporation
90 Merrick Avenue
East Meadow, New York 11554
December 17, 1998
Kevin Lang
Abraham Weinzimer
c/o Dealers Choice Automotive
Planning Inc.
2545 Hempstead Turnpike
East Meadow, NY 11554
Morton L. Certilman
90 Merrick Avenue
East Meadow, NY 11554
Jay M. Haft
201 South Biscayne Boulevard
Suite 3000
Miami, Florida 33131
Gentlemen:
Reference is made to that certain Agreement, dated as of May 8, 1998, by
and among EXTECH Corporation, Morton L. Certilman, Jay M. Haft, Kevin Lang and
Abraham Weinzimer, as amended (the "Agreement").
Each of the parties to the Agreement hereby agrees the paragraphs (b) and
(c) of Section 13.1 of the Agreement are amended to substitute "February 28,
1999" for "December 31, 1998."
Except as amended hereby, the provisions of the Agreement, as amended,
shall continue in full force and effect.
1
<PAGE>
If the foregoing accurately sets your understanding, please so indicate by
signing in the space provided below.
Very truly yours,
EXTECH Corporation
By:__________________________
Morton L. Certilman, President
Agreed:
- -----------------------------
Morton L. Certilman
- -----------------------------
Jay M. Haft
- ---------------------------
Kevin Lang
- ---------------------------
Abraham Weinzimer
2
<PAGE>
Appendix B
Capitalink, L.C.
800 Douglas Road
La Puerta del Sol
Suite 245
Coral Gables, Florida 33134
December 22, 1998
Board of Directors
EXTECH CORPORATION
90 Merrick Avenue
East Meadow, New York 11554
Members of the Board:
We understand that there is an agreement dated May 8, 1998 (the
"Agreement") by and among Extech Corporation, a Delaware corporation ("Extech"),
Morton L. Certilman ("Certilman"), Jay M. Haft ("Haft"), Kevin Lang ("Lang") and
Abraham Weinzimer ("Weinzimer), whereby the events set forth below shall occur.
We further understand that Lang and Weinzimer own (i) all of the issued and
outstanding common shares of Dealers Choice Automotive Planning Inc. and certain
other corporations as set forth on Schedule A of the Agreement, and (ii) certain
of the outstanding common shares of certain other corporations and certain
membership interests in a certain limited liability company as set forth on
Schedule B of the Agreement (Lang and Weinzimer are sometimes referred to as the
"DCAP Shareholders") (the entities referenced in (i) and (ii) above are
hereafter, "DCAP") .
At the closing of the Agreement, the following events are to occur:
The DCAP Shareholders will transfer all of the outstanding common shares
of DCAP to Extech in exchange for an aggregate of 3,300,000 shares of
Extech common stock.
The DCAP Shareholders will purchase an aggregate of 950,000 shares of
Extech common stock at a purchase price of $.25 per share, or $237,500
in the aggregate. In connection with such purchase, the DCAP
Shareholders will (a) pay cash in the aggregate amount of
Page 1 of 4
<PAGE>
Extech Corporation
Board of Directors
December 22, 1998
$9,500, and (b) each deliver a promissory note to Extech in the
principal amount of $114,000 (an aggregate of $228,000).
Certilman and Haft, or their designees, will each purchase 226,000 shares
of Extech common stock at a purchase price of $.25 per share, or
$113,000 in the aggregate. Certilman and Haft will each pay cash for
such shares.
Certilman, Haft, and each of the DCAP Shareholders will purchase 450,000
shares of Extech common stock from a third party (1,800,000 in the
aggregate) at a purchase price of $.25 per share. In connection with
such purchase, Extech will loan each of the DCAP Shareholders $112,500
($225,000 in the aggregate). The promissory notes reflecting such loan
will be non-recourse against the respective DCAP Shareholder.
The transaction described in the preceding section is referred to as the
"Proposed Transaction."
You have requested our opinion as to the fairness, from a financial point
of view, to Extech of the consideration to be offered under the terms of the
Agreement. We have not been requested to opine as to, and our opinion does not
in any manner address, the underlying business decision of Extech to proceed
with or effect the Proposed Transaction.
In arriving at our opinion, we, among other things: (i) reviewed the
Agreement and the specific terms of the Proposed Transaction; (ii) reviewed
publicly available financial information and other data with respect to Extech,
including the Form 10-KSB for the fiscal year ended December 31, 1997, and
certain other relevant financial and operating data relating to Extech and DCAP
made available to us from published sources and from the internal records of
Extech and DCAP; (iii) reviewed and discussed with representatives of the
managements of Extech and DCAP certain financial and operating information
furnished to us by them, including financial projections and related assumptions
with respect to the business, operations and prospects of DCAP; (iv) considered
various trading multiples, to the extent publicly available, of certain other
companies that we deemed comparable to DCAP; (v) considered the historical
financial results and present financial condition of each of Extech and DCAP;
(vi) reviewed certain publicly available information concerning the trading of,
and the trading market for, the common stock of Extech; (vii) inquired about and
discussed the Proposed Transaction and Agreement and other matters related
thereto with Extech's management; and (viii) performed such other analyses and
examinations as we deemed appropriate.
In arriving at our opinion, we have relied upon and assumed the accuracy
and completeness
Page 2 of 4
<PAGE>
Extech Corporation
Board of Directors
December 22, 1998
of all of the financial and other information that was used by us without
assuming any responsibility for any independent verification of any such
information and have further relied upon the assurances of managements of Extech
and DCAP that they were not aware of any facts or circumstances that would make
any such information inaccurate or misleading. With respect to the financial
projections of DCAP, we have assumed that such projections have been reasonably
prepared on a basis reflecting the best currently available estimates and
judgements of management as to DCAP's future operating and financial
performance, and that such projections provide a reasonable basis upon which we
could form an opinion. In addition, the projections of DCAP were based upon
numerous variables and assumptions that are inherently uncertain, including,
without limitation, factors relating to general economic and competitive
conditions. Accordingly, actual results could vary significantly from those set
forth in such projections. In arriving at our opinion, we have not made a
physical inspection of the properties and facilities of Extech and DCAP, and
have not made or obtained any evaluations or appraisals of the assets and
liabilities (contingent or otherwise) of Extech and DCAP. We have assumed that
the Proposed Transaction will be consummated in an manner that complies in all
respects with the applicable provisions of the Securities Act of 1933, as
amended, the Exchange Act of 1934, as amended, and all other applicable federal
and state statutes, rules and regulations. In addition, upon the advice of the
management of Extech and its legal and accounting advisors, we have assumed that
the exchange of shares in the Proposed Transaction will not be a taxable event
based on Section 351 of the Internal Revenue Code of 1986, as amended. Our
opinion was necessarily based upon market, economic and other conditions as they
existed on, and could be evaluated as of, May 8, 1998. Accordingly, although
subsequent developments may affect our opinion, we do not assume any obligation
to update, review or reaffirm our opinion.
We have also assumed, with your consent, that the Proposed Transaction will
be consummated in accordance with the terms described in the Agreement, without
any further amendments thereto, and without waiver by Extech of any of the
conditions to its obligations thereunder.
Based upon and subject to the foregoing, it is our opinion that as of May
8, 1998, from a financial point of view, the consideration to be offered in the
Proposed Transaction is fair to Extech.
In connection with our services, we have previously received a deposit and
will receive the balance of our fee upon rendering this opinion. In addition,
Extech has agreed to indemnify us for certain liabilities that may arise out of
the rendering this opinion.
Notwithstanding anything contained herein to the contrary, this opinion is
as of May 8, 1998. We have not undertaken any investigation to update the
Page 3 of 4
<PAGE>
Extech Corporation
Board of Directors
December 22, 1998
opinion after such date or through the date hereof. We disclaim any obligation
to advise you of any changes that thereafter were or may be brought to our
attention.
Our opinion is for the use and benefit of the Board of Directors of Extech
and is rendered to the Board of Directors in connection with its consideration
of the Proposed Transaction. This opinion is not intended to be and does not
constitute a recommendation to any stockholder of Extech as to how such
stockholder should vote with respect to the Proposed Transaction. We understand
that this opinion may be included in a document required to be filed with the
Securities and Exchange Commission and distributed to stockholders in connection
with the Proposed Transaction, subject to the approval in form and substance by
us and our legal counsel of any description of or reference to us or any summary
of this opinion or any presentation of Capitalink included in such document.
Very truly yours,
CAPITALINK, L.C.
Page 4 of 4
<PAGE>
EXTECH CORPORATION
The Financial Center at Mitchel Field
90 Merrick Avenue
East Meadow, New York 11554
This Proxy is Solicited on Behalf of the Board of Directors
The undersigned hereby appoints Jay M. Haft and Morton L. Certilman as
Proxies, each with the power to appoint his substitute, and hereby authorizes
them, and each of them, to represent and vote, as designated below, all the
shares of Common Stock of EXTECH Corporation ("EXTECH" or the "Company") held of
record by the undersigned at the close of business on February 2, 1999 at the
Annual Meeting of Stockholders to be held on February 25, 1999 or any
adjournment thereof.
1. Election of Directors:
FOR all nominees listed below WITHHOLD AUTHORITY to vote
(except as marked to the contrary) for all nominees listed below
(Instruction: To withhold authority to vote for any individual nominee, strike
such nominee's name from the list below.)
Jay M. Haft Morton L. Certilman Leon Lapidus
The Company's Certificate of Incorporation provides for cumulative voting
of shares for the election of directors, which means that each stockholder has
the right to cumulate his votes and give to one or more nominees as many votes
as equals the number of directors to be elected (three) multiplied by the number
of shares he is entitled to vote. A stockholder may therefore cast his votes for
one nominee or distribute them among two or all three of the nominees. A vote
FOR includes discretionary authority to cumulate votes among nominees. To
cumulate specifically votes for any nominee, set forth the number of votes after
the name of each nominee below:
Jay M. Haft ___ Morton L. Certilman ___ Leon Lapidus ___
2. Proposal to approve the Agreement, dated as of May 8, 1998, by and among the
Company, Morton L. Certilman, Jay M. Haft, Kevin Lang and Abraham Weinzimer, as
amended, and the consummation of the transactions contemplated thereby (the
"DCAP Acquisition"). Pursuant to the DCAP Acquisition, among other things (a)
EXTECH will acquire all of the outstanding stock of Dealers Choice Automotive
Planning Inc. ("DCAP"), a company that is owned by Messrs. Lang and Weinzimer,
as well as interests in other companies that are wholly-owned or partially-owned
by Messrs. Lang and Weinzimer, (b) EXTECH will issue an aggregate of 3,300,000
shares of its Common Stock ("Common Shares") to Messrs. Lang and Weinzimer, (c)
Messrs. Certilman, Haft, Lang and Weinzimer will purchase an aggregate of
1,402,000 Common Shares from EXTECH, (d) Messrs. Certilman, Haft, Lang and
Weinzimer will purchase an aggregate of 1,800,000 Common Shares from a
stockholder of the Company, (e) EXTECH will lend monies to Messrs. Lang and
<PAGE>
Weinzimer to allow them to make the purchases of their portion of the 1,800,000
shares, (f) Messrs. Certilman, Haft, Lang and Weinzimer will enter into
employment agreements with the Company and will be granted stock options, and
(g) the size of the Board of Directors of EXTECH will be increased to four, Mr.
Lapidus will resign as a director of the Company and Messrs. Lang and Weinzimer
will be appointed as directors. The size of the Board is contemplated to be
increased further to five at the closing of the DCAP Acquisition, and Robert M.
Wallach is to be appointed as a director.
FOR ____ AGAINST ____ ABSTAIN ____
3. Subject to obtaining stockholder approval of the DCAP Acquisition, proposal
to amend the Company's Certificate of Incorporation to change the name of the
Company to "DCAP Group, Inc."
FOR ____ AGAINST ____ ABSTAIN ____
4. Subject to obtaining stockholder approval of the DCAP Acquisition, proposal
to amend the Company's Certificate of Incorporation to increase the number of
authorized shares of Common Stock from 10,000,000 to 25,000,000.
FOR ____ AGAINST ____ ABSTAIN ____
5. Subject to obtaining stockholder approval of the DCAP Acquisition, proposal
to amend the Company's Certificate of Incorporation to provide that, under
certain circumstances, if action is to be taken by the stockholders of the
Company without a meeting, then the written consent of the holders of all of the
shares of capital stock of the Company entitled to vote on such action will be
required.
FOR ____ AGAINST ____ ABSTAIN ____
6. Proposal to ratify the adoption of the Company's 1998 Stock Option Plan.
FOR ____ AGAINST ____ ABSTAIN ____
7. In their discretion, the Proxies are authorized to vote upon such other
business as may properly come before the meeting.
This proxy, when properly executed, will be voted in the manner directed by the
undersigned stockholder. If no direction is made, this proxy will be voted FOR
the election of Directors and FOR Proposals 2, 3, 4, 5 and 6.
<PAGE>
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED
ENVELOPE.
Please sign exactly as
name appears below. When
shares are held by joint
tenants, both should sign.
When signing as attorney,
executor, administrator,
trustee or guardian, please
give full title as such. If
a corporation, please sign
in full corporate name by
the President or other
authorized officer. If a
partnership, please sign in
partnership name by
authorized person.
Dated:_______________, 1999
Signature
Signature if held jointly
K:\WPDOC\CORP\EXTECH\PROXY\Prxycard3.98
<PAGE>
