SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)
COMMAND SECURITY CORPORATION
(Name of Issuer)
Common Stock, $.0001 par value per share
(Title of Class of Securities)
20050L100
(CUSIP Number)
Thomas P. Kikis, President
Arcadia Securities, LLC
Kikis Asset Management Corporation
720 Fifth Avenue
New York, New York 10019
(212) 231-4100
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
September 12, 2000
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or
240.13d-1(g), check the following box [ ].
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule including all exhibits. See ss.240.13d-7(b)for
other parties to whom copies are to be sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
Page 1 of 9
<PAGE>
CUSIP Number
20050L100
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1) Names of Reporting Persons, S.S. or I.R.S. Identification Numbers Of
Above Persons:
Thomas P. Kikis
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2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a). . . . . . . . . . . . . . . . . . [ ]
(b). . . . . . . . . . . . . . . . . . [ X ]
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3) SEC Use Only. . . . . . . . .
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4) Source of Funds
(See Instructions). . . . . . . . . . PF
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e). . . . . . . . . [ ]
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6) Citizenship or Place of Organization. . . U.S.A.
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Number of |(7) Sole Voting Power 0
Shares |____________________________________________
Beneficially |(8) Shared Voting Power 1,368,970 *
Owned by |____________________________________________
Each |(9) Sole Dispositive 0
Reporting |____________________________________________
Person |(10) Shared Dispositive Power 1,368,970 *
With: |____________________________________________
11) Aggregate Amount Beneficially Owned by Each Reporting
Person. . . . . . . . . . . . . . . . 1,368,970*
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12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions). . . [ ]
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13) Percent of Class Represented by
Amount of Row (11). . . . . . . . . . 20.78%**
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14) Type of Reporting Person
(See Instructions). . . . . . . . . . OO***
* This amount includes 300,000 shares underlying currently exercisable
warrants and 408,170 shares underlying the Company's Series A Convertible
Preferred Stock over which Thomas Kikis has discretionary authority. Thomas
P. Kikis expressly disclaims beneficial ownership of all but 144,416 shares
(54,416 shares underlying the Company's Series A Convertible Preferred Stock
and 90,000 shares of Common Stock).
** Calculated after including the warrants to purchase 300,000 shares in the
numerator and the denominator.
*** Thomas P. Kikis serves as President of Kikis Asset Management Corporation
and of Arcadia Securities,LLC.
Page 2 of 9
<PAGE>
CUSIP Number
20050L100
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1) Names of Reporting Persons, S.S. or I.R.S. Identification Numbers
Of Above Persons:
Kikis Asset Management Corporation, 13-3739921
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2) Check the Appropriate Box if a Member of a Group (See Instructions)
(a). . . . . . . . . . . . . . . . . . [ ]
(b). . . . . . . . . . . . . . . . . . [ X ]
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3) SEC Use Only. . . . . . . . .
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4) Source of Funds
(See Instructions). . . . . . . . . . PF
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e). . . . . . . . . [ ]
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6) Citizenship or Place of Organization. . . New York
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Number of |(7) Sole Voting Power 0
Shares |____________________________________________
Beneficially |(8) Shared Voting Power 786,295*
Owned by |____________________________________________
Each |(9) Sole Dispositive 0
Reporting |____________________________________________
Person |(10) Shared Dispositive Power 786,295*
With: |____________________________________________
11) Aggregate Amount Beneficially Owned by Each Reporting
Person. . . . . . . . . . . . . . . . 786,295*
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12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions). . . [ ]
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13) Percent of Class Represented by
Amount of Row (11). . . . . . . . . . 11.9%**
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14) Type of Reporting Person
(See Instructions). . . . . . . . . . IA, CO
* This amount includes 300,000 shares which underlie currently exercisable
warrants and an aggregate of 163,295 shares issuable upon the conversion of
the Company's Series A Preferred Stock.
** Calculated after including the warrants to purchase 300,000 shares in the
numerator and the denominator.
Page 3 of 9
<PAGE>
CUSIP Number
20050L100
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1) Names of Reporting Persons, S.S. or I.R.S. Identification Numbers Of
Above Persons:
Arcadia Securities, LLC, 13-3981264
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2) Check the Appropriate Box if a Member of a
Group (See Instructions)
(a). . . . . . . . . . . . . . . . . . [ ]
(b). . . . . . . . . . . . . . . . . . [ X ]
-----------------------------------------------------------------------
3) SEC Use Only. . . . . . . . .
-----------------------------------------------------------------------
4) Source of Funds
(See Instructions). . . . . . . . . . PF
-----------------------------------------------------------------------
5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e). . . . . . . . . [ ]
-----------------------------------------------------------------------
6) Citizenship or Place of Organization. . . New York
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Number of |(7) Sole Voting Power 0
Shares |____________________________________________
Beneficially |(8) Shared Voting Power 1,368,970*
Owned by |____________________________________________
Each |(9) Sole Dispositive 0
Reporting |____________________________________________
Person |(10) Shared Dispositive Power 1,368,970*
With: |____________________________________________
11) Aggregate Amount Beneficially Owned by Each Reporting
Person. . . . . . . . . . . . . . . . 1,368,970*
-----------------------------------------------------------------------
12) Check if the Aggregate Amount in Row (11) Excludes
Certain Shares (See Instructions). . . [ ]
-----------------------------------------------------------------------
13) Percent of Class Represented by
Amount of Row (11). . . . . . . . . . 20.78% **
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14) Type of Reporting Person
(See Instructions). . . . . . . . . . BD, CO
* This amount includes 300,000 shares which underlie currently exercisable
warrants and an aggregate of 163,295 shares issuable upon the conversion of
the Company's Series A Preferred Stock.
** Calculated after including the warrants to purchase 300,000 shares in the
numerator and the denominator.
Page 4 of 9
<PAGE>
This amendment No. 2 reflects change to the previously filed. Unless
otherwise stated, all information in the prior filing remains effective.
The following replaces each Item 2(a), with respect to Kikis Asset Management
Corporation and Arcadia Securities, LLC, in their entirety:
Item 2. Identity and Background.
Kikis Asset Management Corporation
(a) KAMC acts with shared discretionary authority as investment advisor
to clients who own in the aggregate 786,295 shares of Common Stock.
Arcadia Securities, LLC
(a) Arcadia acts, with shared discretionary authority, as a
broker-dealer to clients who own in the aggregate 1,368,970 shares of Common
Stock. These clients include Peter T. Kikis, a director of the Company, who
owns individually 616,879 shares of Common Stock, including 300,000 shares
issuable on the exercise of warrants and 108,879 shares issuable upon the
conversion of shares of the Company's Series A Preferred Stock, par value
$0.0001 per share (the "Series A Preferred Stock") and owns beneficially
25,000 shares for a family trust. Thomas P. Kikis is the President of Arcadia
and is also a director of the Company. Mr. Kikis also owns individually
144,416 shares of the Common Stock, including 54,416 shares issuable on
conversion of the Series A Preferred Stock, and such shares are attributed to
KAMC for purposes of this Statement.
The following amends Item 4. To reflect recent events, which are the primary
reasons for this filing:
Item 4. Purpose of Transaction.
Thomas P. Kikis, Peter T, Kikis, and Martin Sands, each on behalf of
himself and certain discretionary accounts, and affiliates of Martin Sands
have entered into a stock purchase agreement with Reliance Security Group
plc, a company organized under the laws of England and Wales ("Reliance"),
pursuant to which each of the sellers thereunder has agreed to sell all
shares of Common Stock of the Company, all shares of Preferred Stock of the
Company and all warrants exercisable for shares of common stock of the
Company beneficially owned by them at the time of closing, including shares
owned under discretionary authority (a total of 1,368,970 shares as of the
date of this Statement) to Reliance for $2.20 per share (the "Stock Purchase
Agreement"). The closing under the Stock Purchase Agreement is conditioned on
a number of items, including but not limited to: (i) the issuance by the
Company to Reliance of a warrant (the "Warrant") to purchase a number of
shares equal to 20% of the outstanding Common Stock on a fully-diluted basis
taking into account the exercise of all stock options, warrants and
Page 5 of 9
<PAGE>
rights to acquire shares of Common Stock outstanding, conversion of all
shares of Preferred Stock outstanding, and exercise of such warrant, but
specifically excluding the warrants issued to William Vassell pursuant to an
employment agreement to be executed between the Company and William Vassell
at $1.25 per share, (ii)the Company entering into a registration rights
agreement with Reliance relating to the shares of Common Stock underlying the
Warrant, (iii)the execution and delivery of a shareholders agreement between
Reliance, the Company and William Vassell, (iv) the dismissal of the
shareholders derivative action instituted in the Supreme Court of the State
of New York, County of New York (Index No. 606166/97), by Robert J. Rosan and
four directors of the Company, Steven B. Sands, Lloyd Saunders, III, Peter T.
Kikis and Thomas P. Kikis, against William C. Vassell, Chairman of the Board
of the Company, three other directors of the Company, Gordon Robinett, Peter
J. Nekos and Gregory J. Miller, and David J. Pollitzer, (iv) the execution
and delivery of an employment agreement between the Company and William
Vassel on terms acceptable to Reliance,(v) the Company entering into a term
loan facility for $2.25 million, (vi)the continuance of the Company's listing
on the NASDAQ Small Cap Market, (vii) shareholder approval of all actions to
be taken by the Company requiring shareholder approval, (viii)revocation of
the Shareholders Voting Agreement dated as of the 8th day of March, 1995 by
and among William C. Vassell, Gordon Robinett, Thomas Kikis, Lloyd H.
Saunders III, Peter Kikis, Steven B. Sands, Peter G. Nekos and Gregory J.
Miller, and (ix) an amendment to the Company's Bylaws and Certificate of
Incorporation to remove the requirement that either 75% of all outstanding
shares or at least 75% of all members of the Board of Directors approve the
removal of a director for cause and that directors may be removed without
cause only by the vote of at least 75% of all outstanding shares and provide,
in their stead, that a director may be removed with or without cause by the
vote of the Shareholders or with cause by the vote of a majority of the
entire Board of Directors, and (x) the authorized size of the Board of
Directors of the Company shall have been reduced to seven (7) members and the
Board shall consist of William C. Vassell, Gregory Miller, Peter Nekos, Geoff
Haslehurst, Graeme Halder, Ken Allison and the director to be mutually agreed
upon in writing by William Vassell and Reliance.
As part of the transaction, Reliance has agreed to pay to Peter
Kikis a finder's fee of $.05 for each share sold in this transaction.
In addition, Thomas P. Kikis has entered into a voting agreement
with Reliance (the "Voting Agreement") pursuant to which he agrees, on behalf
of himself and all shares over which he has discretionary authority at the
time of any vote, to vote (i) in favor of (A) the issuance of the Company
Warrant (as defined in the Stock Purchase Agreement) and the Shares of Common
Stock issuable upon exercise of the Company Warrant, (B) approval of the
Charter Amendment (as defined in the Stock Purchase Agreement), and (C) any
other transaction or matter contemplated by, in connection with, or
referenced as a closing condition in, the Stock Purchase Agreement, and (ii)
except as otherwise agreed to in writing in advance by Reliance, against the
following actions: (1) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company
(other than in connection with the transactions contemplated
Page 6 of 9
<PAGE>
by, in connection with or referenced as a closing condition in, the Stock
Purchase Agreement); (2) a sale, lease or transfer of a material amount of
assets of the Company or its Subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or; (3) any
change in a majority of the persons who constitute the Board of Directors of
the Company (other than in connection with the transactions contemplated by,
in connection with or referenced as a closing condition in, the Stock
Purchase Agreement); (4) any change in the present capitalization of the
Company or any amendment of the Company's Certificate of Incorporation or
Bylaws (other than in connection with the transactions contemplated by, in
connection with or referenced as a closing condition in, the Stock Purchase
Agreement); (5) any other material change in the Company's corporate
structure or business (other than in connection with the transactions
contemplated by, in connection with or referenced as a closing condition in,
the Stock Purchase Agreement); or (6) any other action involving the Company
which is intended, or could reasonably be expected, to materially impede,
interfere with, delay, postpone, or materially adversely affect the
transactions contemplated by, in connection with or referenced as a closing
condition in, this Agreement or the Stock Purchase Agreement. Notwithstanding
the foregoing, the Thomas P. Kikis shall not be prohibited from voting his
shares in favor of a reverse stock split or other recapitalization
transaction to enable the Company to maintain its listing on the Nasdaq Small
Cap Market.
Peter Kikis has agreed with the Company to reimburse the Company for
its out of pocket expenses incurred in connection with the transaction with
Reliance under certain circumstances. Another seller has also made a similar
agreement.
The following replaces Item 5. in its entirety:
Item 5. Interest in Securities of the Issuer.
(a) and (b) As of the date of this Statement,
1. Thomas P. Kikis and Arcadia own beneficially, with shared
power to vote, direct the vote and dispose of, 1,368,970 shares including
300,000 shares issuable on exercise of currently exercisable warrants and
408,170 shares issuable on conversion of shares of the Series A Preferred
Stock (20.78% of the outstanding shares of Common Stock, after giving effect
to the issuance of the shares underlying such warrants). The number of shares
over which Thomas P. Kikis and Arcadia have discretionary authority changes
periodically, at the discretion the grantor of discretionary authority. Such
parties have the right to revoke such discretionary authority at any time.
2. KAMC owns beneficially, with shared power to vote, direct the
vote and dispose of 786,295 shares, including 300,000 shares issuable on
exercise of currently exercisable warrants and 163,295 shares issuable on
conversion of shares of the Series A Preferred Stock (11.9% of the
outstanding shares of Common Stock after giving effect to the issuance of the
shares underlying such warrants). Page 7 of 9
<PAGE>
(c) There have been no sales or purchases with respect to the
Issuer's shares effected during the past sixty days by any of the Reporting
Persons listed in Item 5(a) above. Mr. Kikis and Arcadia have been granted
discretionary authority over additional shares at various times since the
last filing of this Schedule 13D.
The following amends Item 6:
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
See Item 4 above.
The following amends Item 7.
Item 7. Material to Be Filed as Exhibits.
Exhibit 1: Stock Purchase Agreement.
Exhibit 2: Voting Agreement.
Page 8 of 9
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: September 18, 2000
KIKIS ASSET MANAGEMENT
CORPORATION
-------------------------
By: /s/ Thomas P. Kikis
Thomas P. Kikis,
President
After reasonable inquiry and to the best of the undersigned's knowledge
and belief, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: September 18, 2000
ARCADIA SECURITIES, LLC
--------------------------
By: /s/ Thomas P. Kikis
Thomas P. Kikis
President
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Dated: September 18, 2000
-------------------------
/s/ Thomas P. Kikis
Thomas P. Kikis
Attention: Intentional misstatements or omissions of fact constitute federal
criminal violations (see 18 U.S.C. ss.1001).
Page 9 of 9
<PAGE>
EXECUTION COPY
STOCK PURCHASE AGREEMENT
September 12, 2000
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of September 12, 2000, by and among the parties listed on Schedule A
(each a "Seller" and collectively, the "Sellers") and Reliance Security Group
plc, a company organized under the laws of England and Wales (the
"Purchaser").
WITNESSETH
WHEREAS, the Sellers Beneficially Own (as hereinafter defined) the
number of shares of Common Stock, $.0001 par value (the "Common Stock") and
Series A Preferred Stock, $.0001 par value (the "Preferred Stock"), of
Command Security Corporation, a New York Corporation (the "Company"), set
forth opposite each Seller's name on Schedule A annexed hereto (the
"Shares");
WHEREAS, certain of the Sellers Beneficially Own the number of
warrants to purchase shares of Common Stock of the Company set forth opposite
that Seller's name on Schedule A annexed hereto (the "Warrants");
WHEREAS, the Sellers, individually and not as a group, desire to
sell and transfer, and the Purchaser desires to purchase and acquire from
Sellers, all right, title and interest in and to the Shares and Warrants (the
"Acquisition");
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual promises, representations, warranties, and covenants hereinafter set
forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. AGREEMENT TO SELL AND PURCHASE.
1.1 Sale and Purchase. Subject to the terms and conditions hereof, at the
Closing (as hereinafter defined) the Sellers, individually and not jointly,
shall convey, sell, transfer, assign and deliver to the Purchaser, and
Purchaser shall purchase and accept from the Sellers, all of the Shares of
Common Stock and Preferred Stock Beneficially Owned by the Sellers (the
"Transaction Shares") and Warrants, which shall not be less than 770,414
Shares of Common Stock and 9,877.07 Shares of Preferred Stock, and 300,000
Warrants; provided all Shares owned of record by the Sellers and their
affiliates and the plaintiffs in the action entitled Rosan et al. v. Vassell,
New York State Supreme Court, County of New York, Index No. 606166/97 (the
"Litigation") shall be sold to the Purchaser.
1.2 Purchase Price and Allocation. The purchase price (i) per Transaction
Share of Common Stock shall be $2.20, (ii) per Transaction Share of Preferred
Stock shall be $2.20 multiplied by the number of shares of Common Stock
issuable upon conversion of such Share of Preferred Stock, and (iii) per
Warrant shall be $2.20 per share of Common Stock issuable upon exercise of
each Warrant (each a "Warrant Share") less the exercise price per Warrant
Share of each Warrant. The aggregate purchase price for the Shares and
Warrants shall be $5,976,888.30 (assuming discretionary authority is not
withdrawn over any Shares), allocated among the Sellers in accordance with
the allocation set forth on Schedule A annexed hereto (the "Purchase Price
Allocation") and shall be paid in immediately available funds.
2. CLOSING.
The closing of the sale and purchase of the Transaction
Shares and Warrants under this Agreement (the "Closing") shall take place as
soon as practicable after the satisfaction of the conditions set forth in
Section 5. The Closing shall take place at the offices of Rosenman & Colin
LLP, 575 Madison Avenue, New York, New York 10022. The date and time of the
Closing is hereinafter referred to as the "Closing Date").
3. REPRESENTATIONS AND WARRANTIES OF THE SELLERS.
In order to induce the Purchaser to enter into this Agreement and to
perform its obligations hereunder, each Seller, as to himself or to itself
only, makes the following representations and warranties to the Purchaser.
3.1 Ownership of Shares.On the date hereof, the Seller is the record holder
of or Beneficially Owns (as hereinafter defined) the Shares and Warrants. The
Seller has power of disposition, power of conversion and power to agree to
all of the matters set forth in this Agreement, in each case with respect to
all of the Shares, with no limitations, qualifications or restrictions on
such rights, subject to revocation and termination rights under state law,
applicable state and federal securities laws, and the terms and conditions of
discretionary agreements to which the Sellers may be subject and the terms of
this Agreement. With respect to Shares over which discretionary authority has
been granted to Sellers, such Shares are Beneficially Owned or owned of
record by Persons (as hereinafter defined) with whom a Seller has had a
pre-existing relationship.
On the Closing Date, the Seller will be the record holder of or will
Beneficially Own (as hereinafter defined) the Transaction Shares and
Warrants. The Seller will have power of disposition, power of conversion and
power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of the Transaction Shares, with no limitations,
qualifications or restrictions on such rights, subject to revocation and
termination rights under state law, applicable state and federal securities
laws, and the terms and conditions of discretionary agreements to which the
Sellers may be subject and the terms of this Agreement.
For purposes of this Agreement, "Beneficially Own" "Beneficial
Ownership" with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person (as defined below) shall
include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d)(3) of
the Exchange Act. No representation or warranty is made hereby that the
Sellers constitute a "group" as within the meaning of Section 13(d)(3) of the
Exchange Act.
"Person" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
3.2 Power; Binding Agreement. The Seller has the legal capacity, power and
authority to enter into and perform all of the Seller's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
the Seller will not violate any other Agreement to which Seller may be a
party, but is subject to any outstanding discretionary agreement to which
such Seller may be party, including the right of the record owner of the
Shares to withdraw such discretion at any time. This Agreement has been duly
and validly executed and delivered by the Seller and constitutes a valid and
binding agreement of the Seller, enforceable against the Seller in accordance
with its terms except that such enforceability (i) may be limited by
bankruptcy, insolvency, moratorium or other similar laws relating to the
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity and discretion of the court before which any proceedings
seeking injunctive relief or specific performance may be sought. If the
Seller is married and the Seller's Shares and/or Warrants Beneficially Owned
by him (exclusive of Shares Beneficially Owned by virtue of discretionary
authority) constitute community property, this agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Seller's spouse, enforceable against such Person in
accordance with its terms except that such enforceability (i) may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to the
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity and discretion of the court before which any proceedings
seeking injunctive relief or specific performance may be sought.
3.3 No Encumbrances. When the Transaction Shares and Warrants are delivered
by the Seller in accordance with this Agreement, the Purchaser will receive
valid title to the Transaction Shares and Warrants purchased by it hereunder,
free and clear of all liens, claims, security interests, proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever (collectively, "Liens").
3.4 No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state, local or federal or foreign public body or authority
or any other party is necessary for the execution of this Agreement by the
Seller and the consummation by the Seller of the transactions contemplated
hereby; provided that the parties understand that certain filings, including
but not limited to a Schedule 13D, must be made to the Securities and
Exchange Commission (the "Commission") in order to be in compliance with
Federal securities laws. Neither of the execution and delivery of this
Agreement by the Seller, the consummation by the Seller of the Acquisition or
the transactions contemplated hereby nor compliance by the Seller with any of
the provisions hereof shall, in a manner which would be material and adverse
to the ability of the Seller to consummate the Acquisition or the
transactions contemplated hereby or to comply with the terms hereof (i)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the Seller
is a party or by which the Seller or any of the Seller's properties or assets
may be bound, other than that certain Shareholders Voting Agreement, dated as
of the 8th day of March, 1995, as amended, by and among William C. Vassell,
Gordon Robinett, Lloyd H. Saunders III, Peter Kikis, Thomas Kikis, Steven B.
Sands, Peter G. Nekos and Gregory J. Miller, which must be revoked as a
condition to Purchaser's obligation to close under this Agreement or (ii)
violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to the Seller or any of the Seller's properties or
assets; provided, however, that no representation or warranty is made with
respect to any actions required to be taken by Purchaser under applicable law
as a result of the transactions contemplated hereby.
3.5 Broker's Fees. Except for fees paid to Peter Kikis, the Seller represents
and warrants that no agent, broker, investment banker, person or firm acting
on behalf of or under the authority of such party hereto is or will be
entitled to any broker's or finder's fee or any other commission directly or
indirectly in connection with the transactions contemplated herein.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
The Purchaser hereby represents and warrants to the Sellers as
follows:
4.1 Due Organization. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of England and Wales and has all
requisite corporate power and authority to own, lease and operate its
properties and carry its business in the places where such properties are now
owned, leased or operated or where such business is now being conducted
4.2 Power; Binding Agreement. The Purchaser has the legal capacity, power and
authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by the
Purchaser will not violate any other Agreement to which the Purchaser is a
party. This Agreement has been duly and validly executed and delivered by the
Purchaser and constitutes a valid and binding agreement of the Purchaser,
enforceable against the Purchaser in accordance with its terms except that
such enforceability (i) may be limited by bankruptcy, insolvency, moratorium
or other similar laws relating to the enforcement of creditors' rights
generally and (ii) is subject to general principles of equity and discretion
of the court before which any proceedings seeking injunctive relief or
specific performance may be sought.
4.3 No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state, local or federal or foreign public body or authority
or any other party is necessary for the execution of this Agreement by the
Purchaser and the consummation by the Purchaser of the transactions
contemplated hereby. Neither the execution and delivery of this Agreement by
the Purchaser, the consummation by the Purchaser of the Acquisition or the
transactions contemplated hereby nor compliance by the Purchaser with any of
the provisions hereof shall, in a manner which would be material and adverse
to the ability of the Purchaser to consummate the Acquisition or the
transactions contemplated hereby or to comply with the terms hereof (i)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Purchaser is a party or by which the Purchaser or any of the Purchaser's
properties or assets may be bound, or (ii) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation applicable
to the Purchaser or any of the Purchaser's properties or assets; provided,
however, that no representation or warranty is made with respect to any
actions required to be taken by Seller under applicable law as a result of
the transactions contemplated hereby.
4.4 Broker's Fees. Except for fees paid to Peter Kikis, the Purchaser
represents and warrants that no agent, broker, investment banker, person or
firm acting on behalf of or under the authority of such party hereto is or
will be entitled to any broker's or finder's fee or any other commission
directly or indirectly from the Purchaser in connection with the transactions
contemplated herein.
4.5 Investment Representations. The Purchaser is acquiring the Transaction
Shares and Warrants as principal for its own account for investment purposes
only and not with a view to or for distributing or reselling such Transaction
Shares or any part thereof. By executing this Agreement, the Purchaser
further represents that the Purchaser does not presently have any contract,
undertaking, agreement or arrangement with any Person to sell or transfer to
such Person or to any third person, with respect to any of the Transaction
Shares or Warrants. At the time the Purchaser was offered the Shares, it was,
and at the date hereof it is, and at each exercise date under the Warrants,
it will be, an "accredited investor" as defined in Rule 501(a) under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser,
either alone or together with its representatives, has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in
the Transaction Shares and Warrants, and has so evaluated the merits and
risks of such investment. The Purchaser is able to bear the economic risk of
an investment in the Transaction Shares and Warrants and, at the present
time, is able to afford a complete loss of such investment. The Purchaser's
overall commitment to investments which are not readily marketable is not
excessive in view of its net worth and financial circumstances and the
purchase of the Transaction Shares and Warrants will not cause such
commitment to become excessive. The Purchaser acknowledges it (i) has
reviewed or had the opportunity to review all of the Company's periodic
reports under the Exchange Act, (ii) has had access to information about the
Company and the Company's financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to
evaluate its investment; and (iii) has had the opportunity to obtain such
additional information that is necessary to make an informed investment
decision with respect to the investment. The Purchaser is not purchasing the
Transaction Shares and Warrants as a result of or subsequent to any
advertisement, article, notice or other communication regarding the
Transaction Shares and Warrants published in any newspaper, magazine or
similar media or broadcast over television or radio or presented at any
seminar or any other general solicitation or general advertisement. The
Purchaser understands and acknowledges that (i) the Transaction Shares and
Warrants are being offered and sold to it without registration under the
Securities Act in a private placement that is exempt from the registration
provisions of the Securities Act and (ii) the availability of such exemption,
depends in part on, and the Sellers will rely upon the accuracy and
truthfulness of, the foregoing representations and the Purchaser hereby
consents to such reliance. The Purchaser understands that certain of the
Transaction Shares and the Warrants are "restricted securities" under
applicable U.S. federal and state securities laws and that, pursuant to these
laws, the Purchaser must hold such Transaction Shares and Warrants
indefinitely unless they are registered with the Commission and qualified by
applicable state authorities, or an exemption from such registration and
qualification requirements is available.
4.6 Purchaser represents and acknowledges that no Seller has made any
representation or warranty with respect to the business, operations,
condition (financial or otherwise), or prospects of the Company.
5. CONDITIONS TO CLOSING; COVENANTS WITH RESPECT TO CLOSING
5.1 Conditions to Purchaser's Obligations at the Closing. The Purchaser's
obligations to purchase the Transaction Shares and Warrants at the Closing
are subject to the satisfaction, at or prior to the Closing Date, of each of
the following conditions (all or any of which may be waived in whole or in
part by the Purchaser in its sole discretion):
(a) Representations and Warranties True; Performance of Obligations. The
representations and warranties made by the Sellers in Section 3 hereof shall
be true and correct in all material respects as of the Closing Date with the
same force and effect as if they had been made as of the Closing Date, and
the Sellers shall have performed all obligations, agreements and conditions
herein required to be performed or observed by it on or prior to the Closing.
(b) Consents, Permits, and Waivers. The Company and Sellers shall have
obtained any and all consents, permits and waivers necessary for consummation
of the transactions contemplated by the Agreement (except for such as may be
properly obtained subsequent to the Closing), including, without limitation,
the necessary approval of the Company's shareholders of the warrant,
substantially in the form attached hereto as Exhibit A (the "Company
Warrant"), entitling the Purchaser to purchase from the Company such number
of shares of Common Stock equal to 20% of the outstanding Common Stock on a
fully-diluted basis taking into account the exercise of all stock options,
warrants and rights to acquire shares of Common Stock outstanding on the
Closing Date, conversion of all shares of Preferred Stock outstanding on the
Closing Dated and the exercise of the Company Warrant and any warrant issued
to William Vassell. The Company shall have used its best efforts to obtain
the approval of the Company's Shareholders of the amendment to the Company's
Certificate of Incorporation substantially in the form attached hereto as
Exhibit B (the "Charter Amendment"). In furtherance of obtaining the
shareholder approval of the Company Warrant and Charter Amendment, certain of
the Sellers shall have executed on the date hereof the voting agreement
substantially in the form attached hereto as Exhibit C (the "Voting
Agreement").
(c) Compliance Certificate. Each Seller shall have delivered to Purchaser a
compliance certificate, executed by the Seller, dated the Closing Date, to
the effect that the conditions specified in subsection (a) and (b) of this
Section 5.1 have been satisfied.
(d) Instruments of Transfer. Sellers shall have delivered to the Purchaser
the stock certificates for the Transaction Shares, Warrants or Warrant
certificates, stock powers and other documents of transfer, conveyance and
assignment in form and substance reasonably satisfactory to the Purchaser and
Purchaser's counsel required to transfer all of Sellers' right, title and
interest in and to the Transaction Shares and Warrants to Purchaser and to
vest in Purchaser good and marketable title to the Transaction Shares and
Warrants free and clear of all Liens.
(e) Company Warrant. The Company Warrant shall have been executed by the
Company and delivered to the Purchaser.
(f) Listing of Shares Underlying Company Warrant. The Company shall file an
application to cause the shares of the Company's Common Stock to be issued
upon exercise of the Company Warrant to be approved for listing on the Nasdaq
Small Cap Market and pay all requisite fees with respect thereto.
(g) Registration Rights Agreement. The registration rights agreement in the
form attached hereto as Exhibit D (the "Registration Rights Agreement") shall
have been executed and delivered by the parties thereto and shall be in full
force and effect.
(h) Shareholders' Agreement. The shareholders' agreement in the form attached
hereto as Exhibit E (the "Shareholders' Agreement") shall have been executed
and delivered by the parties thereto and shall be in full force and effect.
(i) Employment Agreement. The employment agreement between the Company and
William C Vassell engaging Mr. Vassell to serve as Chairman of the Board and
Chief Executive Officer of the Company, in the form attached hereto as
Exhibit F (the "Employment Agreement") shall have been executed and delivered
by the parties thereto and shall be in full force and effect.
(j) Charter Amendment. If approved by the Company's Shareholders, the Charter
Amendment shall have been filed with the Secretary of State of New York.
(k) Corporate Documents. The Company shall have delivered to Purchaser or its
counsel, copies of all corporate documents of the Company as Purchaser shall
reasonably request.
(l) Termination of Shareholders Voting Agreement. That certain Shareholders
Voting Agreement dated as of the 8th day of March, 1995 by and among William
C. Vassell, Gordon Robinett, Lloyd H. Saunders III, Peter Kikis, Thomas
Kikis, Steven B. Sands, Peter G. Nekos and Gregory J. Miller, shall have been
terminated pursuant to a termination agreement substantially in the form
attached hereto as Exhibit G.
(m) Term Loan Facility. The Company shall have entered into an additional
$2.25 million term loan facility.
(n) Operating Licenses. The Company shall have used its best efforts to cause
all government licenses, permissions, consents, approvals or authorizations
necessary for the conduct of the Company's business as being conducted by it
as of the Closing Date to be registered in the name of an officer or employee
of the Company other than, or in addition to, William C. Vassell.
(o) Dismissal of Litigation. The Company and the Sellers shall have obtained
a dismissal of (i) all claims brought by the Sellers, their affiliates and
each other plaintiff in the Litigation and (ii) the receiver appointed in
connection with such action. In furtherance of obtaining such dismissal, each
Seller has executed on the date hereof a stipulation (the "Stipulation"), a
copy of which is attached hereto as Exhibit H.
(p) Nasdaq Listing. The Company's Common Stock shall continue to be listed on
Nasdaq Small Cap Market or any national securities exchange.
(q) Board of Directors. Each of Messrs. Snitow, Robinett, Thomas Kikis, Peter
Kikis, Saunders and Sands shall have resigned as a member of the Board of
Directors of the Company. The authorized size of the Board of Directors of
the Company shall have been reduced to seven (7) members and the Board shall
consist of William C. Vassell, Gregory Miller, Peter Nekos, Geoff Haslehurst,
Graeme Halder, Ken Allison and the director to be mutually agreed upon in
writing by William Vassell and the Purchaser in accordance with the terms of
the Shareholders Agreement.
(r) Directors' and Officers' Insurance. The Company shall have in full force
and effect directors' and officers' liability insurance from established and
reputable insurers in an amount not less than $2,000,000.
(s) Escrowed Shares. William V. Vassell shall have deposited 250,000 Shares
of Common Stock into escrow pursuant to the Escrow Agreement, dated the date
hereof, among William Vassell, the Purchaser and Proskauer Rose LLP.
(t) Injunctions or Restraints. No court of competent jurisdiction or other
court, tribunal, arbitrator, authority, agency commission, official or other
instrumentality of the United States, any foreign country or any domestic or
foreign state, county, city, or other political subdivision (a "Governmental
or Regulatory Authority") shall have enacted, issued, promulgated, enforced
or entered any law or order (whether temporary, preliminary or permanent)
which is in effect and has the effect of making illegal or otherwise
restricting, preventing or prohibiting consummation of the Acquisition or the
other transactions contemplated hereby.
(u) Proceedings and Documents. All corporate and other proceedings in
connection with the Acquisition and transactions contemplated hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Purchaser and its counsel, and the
Purchaser and its counsel shall have received all such counterpart originals
or certified or other copies of such documents as they may reasonably
request.
(v) Material Adverse Effect. Since the date of this Agreement, there shall
not have occurred any condition, change or effect that is materially adverse
to the business, properties, prospects or condition (financial or otherwise)
of the Company (a "Material Adverse Effect") and no facts or circumstances
arising after the date of this Agreement shall have occurred which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.2 Conditions to Obligations of the Sellers. Each of the Sellers' obligation
to issue and sell the Shares and Warrants at the Closing is subject to the
satisfaction, on or prior to such Closing, of the following conditions (all
or any of which may be waived in whole or in part by the Sellers):
(a) Representations and Warranties True. The representations and warranties
in Section 4 made by the Purchaser shall be true and correct in all material
respects as of the Closing Date, with the same force and effect as if they
had been made on and as of said date.
(b) Compliance Certificate. The Purchaser shall have delivered to each Seller
a compliance certificate, executed by the Purchaser, dated the Closing Date,
to the effect that the conditions specified in subsection (a) of this Section
5.2 have been satisfied.
(c) Performance of Obligations. The Purchaser shall have performed and
complied with all agreements and conditions herein required to be performed
or complied with by the Purchaser on or before the Closing.
(d) Delivery of Purchase Price. The Purchaser shall have delivered to each of
the Sellers by wire transfer of immediately available funds or by certified
or bank cashiers check made payable to each such Seller, the Purchase Price
in the amount set forth opposite each Seller's name on Schedule A annexed
hereto.
(e) Delivery of Finders Fee. The Purchaser shall have paid Peter Kikis a
finders fee in an amount equal to (i) $.05 multiplied by (ii) the aggregate
number of Shares of Common Stock plus the aggregate number of Shares of
Common Stock issuable upon conversion of the Shares of Preferred Stock plus
the number of Warrants sold by the Sellers to the Purchaser hereunder.
(f) Injunctions or Restraints. No Governmental or Regulatory Authority shall
have enacted, issued, promulgated, enforced or entered any law or order
(whether temporary, preliminary or permanent) which is in effect and has the
effect of making illegal or otherwise restricting, preventing or prohibiting
consummation of the Acquisition or the other transactions contemplated
hereby.
(g) Proceedings and Documents. All corporate and other proceedings in
connection with the Acquisition and transactions contemplated hereby and all
documents and instruments incident to such transactions shall be reasonably
satisfactory in substance and form to the Sellers and their counsel, and the
Sellers and their counsel shall have received such counterpart originals or
certified or other copies of such documents as they may reasonably request.
5.3 Covenants Prior to Closing. Each of the parties hereto shall use its best
efforts and shall cooperate fully with the other parties to satisfy the
conditions to Closing set forth in Sections 5.1 and 5.2 and each of the
parties agrees and covenants promptly to execute and deliver, or cause to be
executed and delivered, such documents or instruments, in addition to those
expressly required by this Agreement to be executed and delivered, as any of
the other parties may reasonably deem necessary or desirable to carry out or
implement any provision of this Agreement or the transactions contemplated
hereby, including without limitation, all documents and instruments in
addition to the Stipulation, as may be required to obtain a dismissal of the
Litigation; provided that, with respect to the Shareholders, the agreements
in this paragraph are made in their capacities as shareholders of the
Company. Nothing in this Agreement shall have any effect or impact, or result
in any liability to the Shareholders as a result of actions taken by them as
directors of the Company.
6. TERMINATION.
6.1 Termination. This Agreement may be terminated, and the transactions
contemplated hereby may be abandoned
(a) by written agreement of the Purchaser, on the one hand, and each
Seller, on the other hand; or
(b) upon notification to the non-terminating party by the terminating
party:
(i) at any time after January 31, 2001 if the
Acquisition shall have not been consummated on or prior to such date
and such failure to consummate the Acquisition is not caused by a
breach of this Agreement by the terminating party;
(ii) if any court of competent jurisdiction or
other competent Governmental or Regulatory Authority shall have
issued an order making illegal or otherwise preventing or
prohibiting the Acquisition and such order shall have become final
and non-appealable; or
(iii) if there has been a breach of any
representation, warranty, covenant or agreement on the part of the
non-terminating party set forth in this Agreement which breach is
not curable, or, if curable, has not been cured within fifteen (15)
days following receipt by the non-terminating party of notice of
such breach from the terminating party.
6.2 Effect of Termination. In the event of a termination of this Agreement
pursuant to 6.1, this Agreement shall become void and there shall be no
liability hereunder on the part of the any Seller or the Purchaser or their
respective officers or directors; provided, however, that nothing contained
in this Section 6.2 shall relieve any party from any liability for any breach
of this Agreement.
7. MISCELLANEOUS.
7.1 Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York as such laws are applied to agreements between
New York residents entered into and performed entirely in New York.
7.2 Survival. The representations and warranties made herein shall survive
the closing of the transactions contemplated hereby for three years following
the Closing and shall in no way be affected by any investigation or knowledge
of the subject matter thereof made by or on behalf of any Purchaser. All
agreements contained herein shall survive the Closing until, by their
respective terms, they are no longer operative.
7.3 Indemnification.
(a) Each Seller, severally and not jointly, shall indemnify, defend and hold
the Purchaser, its affiliates and respective officers, directors, partners
(and the affiliates, officers, directors, partners, employees, agents,
successors and assigns thereof), employees, agents, successors and assigns
(each a "Purchaser Entity") harmless from and against all Losses (as defined
below) incurred or suffered by a Purchaser Entity as a result of the breach
of any of the representations, warranties, covenants or agreements made by
such Seller in this Agreement or the Voting Agreement. The Purchaser, shall
indemnify, defend and hold the Sellers, their affiliates and respective
officers, directors, partners (and the affiliates, officers, directors,
partners, employees, agents, successors and assigns thereof) employees,
agents, successors and assigns (each, a "Seller Entity") harmless against all
Losses incurred or suffered by a Seller Entity as a result of the breach of
any of Purchaser's representations, warranties, covenants or agreements in
this Agreement.
(b) For purposes of this Section 7.3, "Losses" shall mean each and all of the
following items: claims, losses, liabilities, obligations, payments, damages,
charges, judgments, fines, penalties, amounts paid in settlement, costs and
expenses (including, without limitation, interest which may be imposed in
connection therewith, costs and expenses of investigation, actions, suits,
proceedings, demands, assessments and reasonable fees, expenses and
disbursements of counsel, consultants and other experts). Any payment (or
deemed payment) by a Seller to the Purchaser pursuant to this Section 7.3
shall be treated for federal income tax purposes as an adjustment to the
price paid by the Purchaser for the Shares and Warrants pursuant to this
Agreement.
(c) A party seeking indemnification (the "Indemnified Party") under this
Section 7.3 shall promptly upon becoming aware of the facts indicating that a
claim for indemnification may be warranted, give to the party from whom
indemnification is being sought (the "Indemnifying Party") a claim notice
relating to such Loss (a "Claim Notice"). Each Claim Notice shall specify the
nature of the claim, the applicable provision(s) of this Agreement or other
instrument under which the claim for indemnity arises, and, if possible, the
amount or the estimated amount thereof. No failure or delay in giving a Claim
Notice and no failure to include any specific information relating to the
claim (such as the amount or estimated amount thereof) or any reference to
any provision of this Agreement or other instrument under which the claim
arises shall affect the obligation of the Indemnifying Party unless such
failure materially and adversely prejudices the Indemnifying Party. If such
Loss relates to the commencement of any action or proceeding by a third
person, the Indemnified Party shall give a Claim Notice to the Indemnifying
Party regarding such action or proceeding and the Indemnifying Party shall be
entitled to participate therein to assume the defense thereof with counsel
reasonably satisfactory to the Indemnified Party. After notice from the
Indemnifying Party to the Indemnified Party of its election to assume the
defense of such action or proceeding, the Indemnifying Party shall not be
liable (except to the extent the proviso to this sentence is applicable, in
which event it will be so liable) to the Indemnified Party under this Section
7.3 for any legal or other expenses subsequently incurred by the Indemnified
Party in connection with the defense thereof other than reasonable costs of
investigation; provided that each Indemnified Party shall have the right to
employ separate counsel to represent it and assume its defense (in which
case, the Indemnifying Party shall not represent it) if (i) upon the advice
of counsel, the representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them,
(ii) in the event the Indemnifying Party has not assumed the defense thereof
within ten (10) business days of receipt of notice of such claim or
commencement of action, and in which case the fees and expenses of one such
separate counsel shall be paid by the Indemnifying Party or (iii) if such
Indemnified Party who is a defendant in any action or proceeding which is
also brought against the Indemnifying Party reasonably shall have concluded
that there may be one or more legal defenses available to such Indemnified
Party which are not available to the Indemnifying Party. If any Indemnified
Party employs such separate counsel it will not enter into any settlement
agreement which is not approved by the Indemnifying Party, such approval not
to be unreasonably withheld. If the Indemnifying Party so assumes the defense
thereof, it may not agree to any settlement of any such claim or action as
the result of which any remedy or relief, other than monetary damages for
which the Indemnifying Party shall be responsible hereunder, shall be applied
to or against the Indemnified Party, without the prior written consent of the
Indemnified Party. In any action hereunder as to which the Indemnifying Party
has assumed the defense thereof with counsel reasonably satisfactory to the
Indemnified Party, the Indemnified Party shall continue to be entitled to
participate in the defense thereof, with counsel of its own choice, but,
except as set forth above, the Indemnifying Party shall not be obligated
hereunder to reimburse the Indemnified Party for the costs thereof.
(d) Except with respect to Losses which arise as a result of a claim based on
an inaccuracy of a representation or the breach of a warranty which is known
to a Seller to be false at the time such representation or warranty is made
by such Seller (a "Purchaser Fraud Claim") for which there shall be no limit,
in no event shall the aggregate liability of a Seller with respect to Losses
exceed the aggregate amount of (i) $2.20 multiplied by the number of
Transaction Shares of Common Stock purchased from such Seller, (ii) $2.20
multiplied by the number of Shares of Common Stock issuable upon conversion
of each Transaction Share of Preferred Stock purchased from such Seller and
(iii) $2.20 per share of Common Stock issuable upon exercise of each Warrant.
(e) Except with respect to Losses which arise as a result of a claim based on
an inaccuracy of a representation or the breach of a warranty which is known
to the Purchaser to be false at the time such representation or warranty is
made by the Purchaser (a "Seller Fraud Claim") for which there shall be no
limit, in no event shall the aggregate liability of the Purchaser to any
Seller with respect to Losses exceed the aggregate amount of (i) $2.20
multiplied by the number of Transaction Shares of Common Stock purchased from
such Seller, (ii) $.2.20 multiplied by the number of Transaction Shares of
Common Stock issuable upon conversion of each Transaction Share of Preferred
Stock purchase from such Seller, and (iii) $2.20 per share of Common Stock
issuable upon exercise of each Warrant.
7.4 Public Announcements. The Sellers will consult with the Purchaser before
issuing any press release or otherwise making any public statements with
respect to the transactions contemplated by this Agreement and shall not
issue any such press release or make any such public statement prior to such
consultation, except as may be required by applicable law or regulation.
7.5 No Shop. Until the Closing or the termination of this Agreement in
accordance with Section 6, neither the Sellers nor their respective
affiliates nor any investment banker, attorney or accountant or other
representative retained by the Sellers, shall solicit, or encourage the
solicitation of, or enter into, negotiations of any type, directly or
indirectly, or enter into a letter of intent or purchase agreement or other
similar agreement with any person, firm or corporation other than the
Purchaser with respect to the sale of any of the Shares or Warrants.
7.6 Successors and Assigns. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties
hereto and shall inure to the benefit of and be enforceable by each person
who shall be a holder of the Shares and/or Warrants from time to time.
7.7 Entire Agreement. This Agreement, the exhibits and schedules hereto, and
the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and no party shall be liable or bound to any other in any manner by
any representations, warranties, covenants and agreements except as
specifically set forth herein and therein.
7.8 Severability. In case any provision of the Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby;
provided that the overall intent of this Agreement is achieved.
7.9 Amendment and Waiver.
(a) This Agreement may be amended or modified only upon the written consent
of all the parties hereto.
(b) No waiver of the provisions hereof shall be effective unless in writing
and signed by the party to be charged with such waiver.
7.10 Delays or Omissions. No delay or omission to exercise any right, power
or remedy accruing to any party, upon any breach, default or noncompliance by
another party under this Agreement, shall impair any such right, power or
remedy, nor shall it be construed to be a waiver of any such breach, default
or noncompliance, or any acquiescence therein, or of or in any similar
breach, default or noncompliance thereafter occurring. Any waiver, consent or
approval of any kind or character on the Purchaser's part in connection with
any breach, default or noncompliance under this Agreement, or any waiver on
such party's part of any provisions or conditions of this Agreement, shall be
in writing and shall be effective only to the extent specifically set forth
in such writing.
7.11 Notices. All offers, notices, acceptances, requests of other
communications hereunder shall be in writing and shall be delivered (i) in
person, (ii) by certified or registered mail, return receipt requested, (iii)
by Federal Express or other nationally recognized overnight courier service
which issues confirmation of delivery or (iv) by confirmed facsimile
transmission, to the Company, each Seller and the Purchaser at the addresses
or facsimile numbers set forth below or to such other addresses or facsimile
number, as applicable, as any party hereto may designate to the others in
writing:
If to Sellers:
Peter Kikis
c/o Kikis Asset Management
720 Fifth Avenue, 9th Floor
New York, New York 10019
Facsimile: (212) 397-9728
Steven Sands
c/o Sands Brothers & Co., Ltd.
90 Park Avenue
New York, New York 10016
Facsimile: (212) 697-8035
with a copy to:
Curtin & Galt LLP
19 Hollywood Avenue
Albany, New York 12208
Attention: Germaine Curtin, Esq.
Facsimile: (518) 459-5487
and
Littman Krooks Roth & Ball P.C.
655 Third Avenue, 20th Floor
New York, New York 10017
Attention: Mitchell Littman, Esq.
Facsimile: (212) 490-2990
If to Purchaser
Reliance Security Group plc
Boundary House
Cricket Field Road
Uxbridge, Middlesex UB8 1QG
Attention: Geoff Haslehurst
Facsimile: 011441895205090
with a copy to:
Rosenman & Colin LLP
575 Madison Avenue
New York, NY 10022
Attention: Howard S. Jacobs, Esq.
Wayne Wald, Esq.
Facsimile: 212 940 8776
Any such notice shall be deemed to be given (i) when delivered, if delivered
personally or by Federal Express or other nationally recognized overnight
courier service, (ii) on the third Business Day after the date of mailing, if
sent by certified or registered mail or (iii) upon confirmation of receipt,
if delivered by facsimile transmission.
7.12 Titles and Subtitles. The titles of the sections and subsections of the
Agreement are for convenience of reference only and are not to be considered
in construing this Agreement.
7.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.14 Pronouns. All pronouns contained herein, and any variations thereof,
shall be deemed to refer to the masculine, feminine or neutral, singular or
plural, as to the identity of the parties hereto may require.
7.15 Other Remedies. In addition to those remedies specifically set forth
herein, if any, either party hereto may proceed to protect and enforce its
rights under this Agreement either by suit in equity and/or by action at law,
including, but not limited to, an action for damages as a result of any such
breach and/or an action for specific performance of any such covenant or
agreement contained in this Agreement. No right or remedy conferred upon or
reserved to either party or the holder of Shares under this Agreement is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to every other right and remedy
given under this Agreement or now and hereafter existing under applicable
law. Every right and remedy given by this Agreement or by applicable law to
either party hereto or the holders of Shares may be exercised from time to
time and as often as may be deemed expedient by the holders.
7.16 Further Assurances. At any time or from time to time for a reasonable
period following the Closing, the Company and the Purchaser agree to
cooperate with each other, and at the request of the other party, to execute
and deliver any further instruments or documents and to take all such further
action as the other party may reasonably request in order to evidence or
effectuate the consummation of the Acquisition and the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
7.17 Facsimile Signatures. Any signature page delivered by a fax machine
shall be binding to the same extent as an original signature page, with
regard to any agreement subject to the terms hereof or any amendment thereto.
Any party who delivers such a signature page agrees to later deliver an
original counterpart to any party which requires it.
7.18 Risk of Revocation of Discretionary Authority. The parties understand
and agree that certain Sellers' discretionary authority over the Shares may
be revoked at any time and further agree that such Seller shall have no
liability for any representations, warranties, covenants, obligations or
agreements with respect to Shares for which his discretionary authority has
been revoked at any time prior to the Closing hereunder.
7.19 Adjustment. All dollar amounts and share numbers set forth herein shall
be subject to equitable adjustment in the event of any stock split, stock
dividend, reverse stock split or similar event affecting the Company Common
Stock and/or Preferred Stock, between the date of this Agreement and the
Closing Date, to the extent appropriate.
[Remainder of this page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this STOCK PURCHASE
AGREEMENT as of the date set forth in the first paragraph hereof.
PURCHASER:
RELIANCE SECURITY GROUP PLC
By: /s/ Geoff Haslehurst
----------------------------
Name:
Title:
SELLERS:
/s/ Peter Kikis
----------------------------
Peter Kikis
/s/ Thomas Kikis
----------------------------
Thomas Kikis
THE KIKIS FAMILY FOUNDATION
By: /s/ Thomas P. Kikis
----------------------------
Name:
Title:
THE PERSONS LISTED ON SCHEDULE B-1 HERETO
/s/ Thomas Kikis, as Attorney-in-Fact
---------------------------------
By: Thomas Kikis, as Attorney-in-Fact
/s/ Sarah Leifer
----------------------------
Sarah Leifer
/s/ Murray Leifer
----------------------------
Murray Leifer
/s/ Michael D. Leifer
----------------------------
Michael Leifer
/s/ Jane H. Lenehan
----------------------------
Jane Lenehan
/s/ Donald Radcliffe
----------------------------
Donald Radcliffe
THE PERSONS LISTED ON SCHEDULE B-2(a) HERETO
/s/ Martin Sands, as Attorney-in-Fact
---------------------------------
By: Martin Sands, as Attorney-in-Fact
THE PERSONS LISTED ON SCHEDULE B-2(b) HERETO
/s/ Steven Sands
---------------------------------
By: Steven Sands, as Attorney-in-Fact
KATIE & ADAM BRIDGE PARTNERS, L.P.
By: /s/ Steven Sands
---------------------------------
Name:
Title:
OWL-1 PARTNERS, L.P.
By: /s/ Steven Sands
---------------------------------
Name:
Title:
/s/ Lloyd Saunders
----------------------------
Lloyd Saunders
/s/ Robert Rosan
----------------------------
Robert Rosan
<PAGE>
EXECUTION COPY
VOTING AGREEMENT
THIS VOTING AGREEMENT dated September 12, 2000, between Reliance
Security Group plc, a company organized under the laws of England and Wales
("Reliance"), and Peter Kikis and Thomas Kikis (collectively, the
"Shareholder").
WITNESSETH
WHEREAS, concurrently herewith, Reliance and the Shareholder are
entering into a Stock Purchase Agreement (as such agreement may hereafter be
amended from time to time, the "Stock Purchase Agreement"), pursuant to which
Shareholder will sell all common stock, preferred stock and warrants of
Command Security Corporation, a New York corporation (the "Company"),
beneficially owned by such Shareholder to Reliance;
WHEREAS, the Shareholder Beneficially Owns, as of the date hereof,
709,800 shares of common stock, $.0001 par value per share, of the Company
(the "Common Stock") and 4081.70 shares of Series A Preferred Stock, $.0001
par value per share (the "Preferred Stock"), of the Company (together with
the Common Stock, the "Shares"); and
WHEREAS, as an inducement and a condition to entering into the Stock
Purchase Agreement, Reliance has required that the Shareholder agree, and the
Shareholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. Unless otherwise defined herein, all capitalized terms used
herein shall have the meanings given to such terms in the Stock Purchase
Agreement. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), including pursuant to any agreement,
arrangement or understanding, whether or not in writing.
Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" as within the meaning of Section 13(d)(3) of the
Exchange Act. No representation or warranty is made hereby that the Sellers
constitute a "group" within the meaning of Section 13(d)(3) of the Exchange
Act.
(b) "Person" shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust, unincorporated
organization or other entity.
2. Provisions Concerning Common Stock.
The Shareholder hereby agrees that, at any meeting of the
holders of Common Stock and/or Preferred Stock of the Company, however
called, or in connection with any written consent of the holders of Common
Stock and/or Preferred Stock of the Company, the Shareholder shall vote (or
cause to be voted) all Shares that he has Beneficial Ownership of at the time
of the vote, which shall not be less than 323,000 Shares of Common Stock and
1,632.95 Shares of Preferred Stock (the "Proxy Shares") (i) in favor of (A)
the issuance of the Company Warrant (as defined in the Stock Purchase
Agreement) and the Shares of Common Stock issuable upon exercise of the
Company Warrant, (B) approval of the Charter Amendment (as defined in the
Stock Purchase Agreement) and (C) any other transaction or matter
contemplated by, in connection with, or referenced as a closing condition in,
the Stock Purchase Agreement, and (ii) except as otherwise agreed to in
writing in advance by Reliance, against the following actions: (1) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company (other than in connection with the
transactions contemplated by, in connection with or referenced as a closing
condition in, the Stock Purchase Agreement); (2) a sale, lease or transfer of
a material amount of assets of the Company or its Subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company
or; (3) any change in a majority of the persons who constitute the board of
directors of the Company (other than in connection with the transactions
contemplated by, in connection with or referenced as a closing condition in,
the Stock Purchase Agreement); (4) any change in the present capitalization
of the Company or any amendment of the Company's Certificate of Incorporation
or Bylaws (other than in connection with the transactions contemplated by, in
connection with or referenced as a closing condition in, the Stock Purchase
Agreement); (5) any other material change in the Company's corporate
structure or business (other than in connection with the transactions
contemplated by, in connection with or referenced as a closing condition in,
the Stock Purchase Agreement); or (6) any other action involving the Company
which is intended, or could reasonably be expected, to materially impede,
interfere with, delay, postpone, or materially adversely affect the
transactions contemplated by, in connection with or referenced as a closing
condition in, this Agreement or the Stock Purchase Agreement. The Shareholder
shall not enter into any agreement or understanding with any Person the
effect of which would be inconsistent with or violative of the provisions and
agreements contained in this Section 2. Notwithstanding the foregoing, the
Shareholder shall not be prohibited from voting his Proxy Shares in favor of
a reverse stock split or other recapitalization transaction to enable the
Company to maintain its listing on the Nasdaq Small Cap Market.
3. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) During the term of this Agreement, the Shareholder hereby irrevocably
grants to, and appoints, Ken Allison and Geoff Haslehurst, each in his
capacity as an officer of Reliance, and any other individual who shall
hereafter be designated by Reliance, and each of them individually, the
Shareholder's proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of the Shareholder, to vote the Proxy
Shares, or grant a consent or approval in respect of such Proxy Shares, in
accordance with Section 2.
(b) The Shareholder represents that any proxies heretofore given in respect
of the Proxy Shares are not irrevocable, and that any such proxies are hereby
revoked, other than that certain Shareholders Voting Agreement dated as of
the 8th day of March, 1995 by and among William C. Vassell, Gordon Robinett,
John B. Goldsborough, Lloyd H. Saunders III, Peter Kikis, Steven B. Sands,
Peter Nekos and Gregory J. Miller which must be revoked as a condition to
Reliance's obligation to close under the Stock Purchase Agreement.
(c) The Shareholder hereby affirms that the irrevocable proxy set forth in
this Section 3 is given in connection with the execution of the Stock
Purchase Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of the Shareholder under this Agreement. The
Shareholder hereby further affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. The Shareholder hereby
ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof and that such irrevocable proxy is executed
and intended to be irrevocable in accordance with the provisions of Section
609 (f) of the New York Business Corporations Law.
4. Representations and Warranties of the Shareholder. The Shareholder hereby
represents and warrants to Reliance as follows:
(a) Ownership of Shares. The Shareholder is the record holder of or
Beneficially Owns the Proxy Shares. The Shareholder has voting power and
power to issue instructions and grant the irrevocable proxies with respect to
the matters set forth in Section 2 and Section 3 hereof, power of
disposition, power of conversion, power to exercise dissenters' rights and
power to agree to all of the matters set forth in this agreement, in each
case with respect to all of the Proxy Shares, with no limitations,
qualifications or restrictions on such rights, subject to applicable state
and federal securities laws, the terms and conditions of discretionary
agreements to which the Shareholders may be subject and the terms of this
Agreement.
(b) Power; Binding Agreement. The Shareholder has the legal capacity, power
and authority to enter into and perform all of his obligations under this
Agreement. The execution, delivery and performance of this Agreement by the
Shareholder will not violate any other Agreement to which the Shareholder is
a party including, without limitation, any voting agreement, shareholders
agreement or voting trust. This Agreement has been duly and validly executed
and delivered by the Shareholder and constitutes a valid and binding
agreement of the Shareholder, enforceable against the Shareholder in
accordance with its terms except that such enforceability (i) may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to the
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity and discretion of the court before which any proceedings
seeking injunctive relief or specific performance may be sought. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which the Shareholder is trustee whose consent is required for the
execution and delivery of this agreement or the consummation by the
Shareholder of the transactions contemplated hereby. If the Shareholder is
married and the Shareholder's Shares (other than Shares Beneficially Owned by
Shareholder without considering discretionary authority) constitute community
property, this agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Shareholder's spouse,
enforceable against such Person in accordance with its terms except that such
enforceability (i) may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to the enforcement of creditors' rights generally
and (ii) is subject to general principles of equity and discretion of the
court before which any proceedings seeking injunctive relief or specific
performance may be sought.
(c) No Conflicts. No filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by the Shareholder and the consummation by
the Shareholder of the transactions contemplated hereby. Neither of the
execution and delivery of this Agreement by the Shareholder, the consummation
by the Shareholder of the transactions contemplated hereby nor compliance by
the Shareholder with any of the provisions hereof shall, in a manner which
would be material and adverse to the ability of the Shareholder to consummate
the transactions contemplated hereby or to comply with the terms hereof (i)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Shareholder is a party or by which the Shareholder or any of the
Shareholder's properties or assets may be bound, or (ii) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Shareholder or any of the Shareholder's properties or
assets.
(d) No Encumbrances. Except as applicable in connection with the transactions
contemplated hereby, the Shares over which Shareholder has Beneficial
Ownership at the time of the Closing (the "Transaction Shares") and the
certificates representing the Transaction Shares will be at the time of
Closing, held by the Shareholder, or by a nominee or custodian for the
benefit of the Shareholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder in favor of Reliance.
(e) Reliance. The Shareholder understands and acknowledges that Reliance is
entering into the Stock Purchase Agreement in reliance upon the Shareholder's
execution and delivery of this Agreement.
5. Additional Covenants of the Shareholder. The Shareholder hereby covenants
to Reliance as follows:
(a) Restriction on Transfer of Shares, Proxies and Non-Interference.
Beginning on the date hereof and ending on the date that all of the
Shareholder's obligations under Section 2 and Section 3 have terminated,
except as contemplated by this Agreement or the Stock Purchase Agreement, the
Shareholder shall not, directly or indirectly, (i) offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of, or enter
into any contract, option or other arrangement or understanding with respect
to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of the
Transaction Shares or any interest therein, (ii) except as contemplated by
this Agreement, grant any proxies or powers of attorney, deposit any of the
Transaction Shares into a voting trust or enter into a voting agreement with
respect to any of the Transaction Shares, or (iii) take any action that would
make any representation or warranty of the Shareholder contained herein
untrue or incorrect or have the effect of preventing or disabling the
Shareholder from performing the Shareholder's obligations under this
Agreement.
(b) Additional Shares. The Shareholder agrees, while this Agreement is in
effect the Shareholder shall not acquire, directly or indirectly, any
additional shares of the Company's Common Stock or Preferred Stock.
6. Representations and Warranties of Reliance. Reliance hereby covenants,
represents and warrants to the Shareholder that it has the legal capacity,
power and authority to enter into and perform all of such party's obligations
under this Agreement; the execution, delivery and performance of this
Agreement by Reliance will not violate or result in a breach of any other
material agreement to which Reliance is a party; the execution and delivery
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly executed and delivered by Reliance and
constitutes a valid and binding agreement, enforceable in accordance with its
terms.
7. Further Assurances. From time to time, for a reasonable period of time
following the Closing under the Stock Purchase Agreement, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further
reasonable lawful action as may be necessary or desirable to consummate and
make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
8. Termination; Expenses and Fees.
(a) The covenants and agreements contained herein with respect to the Shares
shall terminate in the event the Stock Purchase Agreement is terminated in
accordance with its terms, except that the provisions of Section 11 and
Section 12 hereof shall survive any termination of this Agreement. No
termination of this Agreement shall relieve any party of liability for a
breach hereof.
(b) Each party shall bear its own expenses in connection with this Agreement
and the transactions contemplated hereby.
9. Shareholder Capacity. The Shareholder is not executing this Agreement and
does not make any agreement or understanding herein in his or her capacity as
a director or officer of the Company and nothing contained herein shall limit
or affect any actions taken by the Shareholder in his capacity as a director
or officer of the Company and none of such actions in such capacities shall
be deemed to constitute a breach of this Agreement. The Shareholder signs
solely in his capacity as the record or Beneficial Owner of the Shares.
10. Risk of Revocation of Discretionary Authority. The parties understand and
agree that Shareholder's discretionary authority over the Shares may be
revoked at any time and further agree that Shareholder shall have no
liability for any representations, warranties, covenants, obligations or
agreements with respect to Shares for which his discretionary authority has
been revoked.
11. Sophistication. The Shareholder acknowledges that he or it is an informed
and sophisticated investor and, together with his advisors, has undertaken
such investigation as they have deemed necessary, including the review of the
Stock Purchase Agreement and this Agreement, to enable the Shareholder to
make an informed and intelligent decision with respect to the Stock Purchase
Agreement and this Agreement and the transactions contemplated thereby and
hereby.
12. Confidentiality. Each of the parties hereto recognizes that successful
consummation of the transactions contemplated by this Agreement may be
dependent upon confidentiality with respect to the matters referred to
herein. In this connection, pending public disclosure thereof, each party
hereby agrees not to disclose or discuss such matters with anyone not a party
to this Agreement or the Stock Purchase Agreement (other than the record or
other Beneficial Owners of the Shares, if necessary, such party's counsel and
advisors, if any, and the Company and its counsel and advisors) without the
prior written consent of the other party, except for filings required
pursuant to the Exchange Act and the rules and regulations thereunder or
disclosures such party's counsel advises are necessary in order to fulfill
such party's obligations imposed by law, in which event such party shall give
notice of such disclosure to the other party as promptly as practicable so as
to enable the other party to seek a protective order from a court of
competent jurisdiction with respect thereto.
13. Miscellaneous.
(a) Entire Agreement. This Agreement and the Stock Purchase Agreement
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(b) Certain Events. The Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shareholder's Shares (exclusive of
Shares Beneficially Owned by virtue of discretionary authority) and shall be
binding upon any person or entity to which legal or Beneficial Ownership of
such Shares shall pass, whether by operation of law or otherwise, including,
without limitation, the Shareholder's heirs, guardians, administrators or
successors. Notwithstanding any transfer of Shares (exclusive of Shares
Beneficially Owned by virtue of discretionary authority), the transferor
shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of law or
otherwise without the prior written consent of the other party, provided,
that Reliance may assign, in its sole discretion, its rights and obligations
hereunder to any direct or indirect wholly owned subsidiary of Reliance, but
no such assignment shall relieve Reliance of its obligations hereunder if
such assignee does not or cannot perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the party to be
charged thereby or, with respect to termination, as otherwise provided
herein.
(e) Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given (and shall be deemed to have
been duly received if so given) by hand delivery, telegram, telex or
telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any nationally recognized courier service, such as
Federal Express, providing proof of delivery. All communications hereunder
shall be delivered to the respective parties at the following addresses:
If to the Shareholder:
Peter Kikis and Thomas Kikis
c/o Kikis Asset Management
720 Fifth Avenue, 9th Floor
New York, New York 10019
Facsimile: (212) 397-9728
and
Curtin & Galt LLP
19 Hollywood Avenue
Albany, New York 12208
Facsimile: (518) 459-5487
If to Reliance:
Reliance Security Group plc
Boundary House
Cricket Field Road
Uxbridge, Middlesex UB81QG
Attention: Geoff Haslehurst `
Facsimile: 011 441895205090
and: Rosenman & Colin LLP
575 Madison Avenue
New York, New York 10022-2585
Attention: Howard S. Jacobs, Esq.
Wayne A. Wald, Esq.
Facsimile: (212) 940-8776
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and
this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein; provided that the overall intent
of this Agreement, together with the Stock Purchase Agreement is achieved.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the aggrieved party to sustain damages for which it
would not have an adequate remedy at law for money damages, and therefore
each of the parties hereto agrees that in the event of any such breach the
aggrieved party shall be entitled to seek the remedy of specific performance
of such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in
equity.
(h) Remedies Cumulative. All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity shall
be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by
such party of its right to exercise any such or other right, power or remedy
or to demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of New York, without giving effect to
the principles of conflicts of law thereof.
(l) Jurisdiction. Each party hereby irrevocably submits to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York or any court of the State of New York located in the City of New
York in any action, suit or proceeding arising in connection with this
Agreement, and agrees that any such action, suit or proceeding shall be
brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
paragraph (1) and shall not be deemed to be a general submission to the
jurisdiction of said Courts or in the State New York other than for such
purposes. Each party hereto hereby waives any right to a trial by jury in
connection with any such action, suit or proceeding.
(m) Descriptive Headings. The descriptive headings used herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
[SIGNATURES BEGIN ON NEXT PAGE]
<PAGE>
IN WITNESS WHEREOF, Reliance and the Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
RELIANCE SECURITY GROUP PLC
By: ___________________________
Name:
Title:
-------------------------------
Thomas Kikis
-------------------------------
Peter Kikis
