UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. *)
Audits and Surveys Worldwide, Inc.
(Name of Issuer)
Common Stock, par value $.O1 per share
(Title of Class of Securities)
050839-10-9
(CUSIP Number)
Stanley H. Fischer, Esq.
Fischer and Burstein, P.C.
98 Cutter Mill Road
Great Neck, New York 11021
(516) 829-1900
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communication)
March 24, 1995
(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 Rule 13d-1(b)(3) or (4), check the following box.
Check the following box if a fee is being paid with the statement X. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent of less of such class.)
(See Rule 13d-7).
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) 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 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> 2
<TABLE>
<S> <C>
1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO OF ABOVE
PERSON: Marilyn Roshwalb
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP ___
3. SEC USE ONLY
4. SOURCE OF FUNDS: 00
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e)
6. CITIZENSHIP OR PLACE OF ORGANIZATION: USA
7. SOLE VOTING POWER: 413,664
8. SHARED VOTING POWER: 400,000
9. SOLE DISPOSITIVE POWER: 413,664
10; SHARED DISPOSITIVE POWER: 400,000
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PER SON:
813,664
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
____
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 6.2%
14. TYPE OF REPORTING PERSON: IN
</TABLE>
<PAGE> 3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
AUDITS & SURVEYS WORLDWIDE, INC.
(Name of Company)
Item 1. Security and Issuer.
The title of the class of equity security to which this statement
relates is the Common Stock, $.01 par value per share, of Audits & Surveys
Worldwide, Inc., a Delaware corporation (the "Company"), whose principal
executive offices are located at 650 Avenue of the Americas, New York, NY
10011.
Item 2. Identity and Background
This statement is filed by Marilyn Roshwalb, a United States citizen
with a business address at c/o Fischer and Burstein, P.C., 98 Cutter Mill
Road, Great Neck, New York 11021. Marilyn Roshwalb's present principal
occupation is as a housewife. During the last five years, Marilyn Roshwalb
has not been convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) nor been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction subjecting them to a judge-
ment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, Federal or State securities laws or
finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
The securities which are reported hereby were acquired in connection
with the Company's merger (the "Merger") with Audits and Surveys, Inc., a New
York corporation ("A&S"), pursuant to which Merger each share of A&S's common
stock outstanding prior to the consummation of the Merger was exchanged for
1,407.565 shares of the Company's Common Stock.
Prior to the consummation of the Merger, the Estate of Irving Roshwalb
owned 578,065 shares of A&S. All of these shares were exchanged for 813,664
shares of Common Stock of the Company, of which, pursuant to the Will of
Irving Roshwalb, 413,664 shares were registered in the name of Marilyn
Roshwalb and 400,000 shares were registered in the name of the Irving
Roshwalb Trust described herein. No cash consideration was paid.
<PAGE> 4
Item 4. Purpose of the Transaction
The securities which are reported hereby were acquired as a result of
the Merger, which took place on March 24, 1995, and are being held for
investment purposes only.
Item 5. Interest in Securities of the Issuer
(a) Marilyn Roshwalb is the beneficial and sole owner of 413,664 shares
of common stock of the Company. Such 413,664 shares constitute approximately
3.1% of the shares of the Company's common stock outstanding as of March 24,
1995.
(b) Marilyn Roshwalb is a trustee and the sole beneficiary of the
Irving Roshwalb Trust. The Irving Roshwalb Trust is the beneficial and sole
owner of 400,000 shares of common stock of the Company. Such 400,000 shares
constitute approximately 3.1% of the shares of the Company's common stock
outstanding as of March 24, 1995. Marilyn Roshwalb, as a trustee of the
Irving Roshwalb Trust, shares the right to vote or dispose of such 400,000
shares, with Alan Roshwalb, the other trustee of the Trust. Alan Roshwalb
has a business address at Market Facts, Inc., 1650 Tyson Blvd., McLean,
Virginia 22101, and his present principal occupation is as a statistician.
During the last five years, Alan Roshwalb has not been convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors)
nor been a party to a civil proceeding of a judicial or administrative body
of competent jurisdiction subjecting them to a judgement, decree or final
order enjoining future violations of, or prohibiting or mandating activities
subject to, Federal or State securities laws or finding any violation with
respect to such laws.
(c) Except as disclosed above, neither Marilyn Roshwalb nor the Irving
Roshwalb Trust has engaged in any transactions in the Company's common stock
in the past 60 days.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer
Marilyn Roshwalb and the Irving Roshwalb Trust have succeeded to the
rights and obligations of the Estate of Irving Roshwalb contained in a
shareholders agreement, dated as of February 9, 1995 (the "Shareholders
Agreement"), by and between the Company and the Estate of Irving Roshwalb.
The Shareholders Agreement provides that, among other things, the Estate will
vote its shares for the election of H. Arthur Bellows, Jr., the Company's
President and Chief Operating Officer to the Board of Directors of the
Company, for as long as Mr. Bellows remains an employee of the Company. The
Shareholders Agreement also provides that at the Company's 1995 and 1996
<PAGE> 5
annual meeting of stockholders, or in connection with any consents of
stockholders to elect directors prior to the Company's 1997 annual meeting
of stockholders, the stockholders will vote for the election to the board of
directors of three nominees designated by H. Arthur Bellows, Jr. (inclusive
of Mr. Bellows if he is nominated).
Marilyn Roshwalb and the Irving Roshwalb Trust have succeeded to the
rights and obligations of the Estate of Irving Roshwalb contained in a
registration rights agreement (the "Registration Rights Agreement"), dated
March 24, 1995, with the Company and certain other persons, pursuant to which
the Estate has certain "piggyback" registration rights with respect to the
securities reported hereby.
Item 7. Material to be Filed as Exhibits
1. Shareholders Agreement, dated as of February 9, 1995, between the
Company and the Estate of Irving Roshwalb; and
2. Registration Rights Agreement, dated as of March 24, 1995, among
Solomon Dutka, the Estate of Irving Roshwalb, H. Arthur Bellows,
Jr. and the Company.
Signatures
After reasonable inquiry and to the best of her knowledge and belief,
the undersigned certifies that the information set forth in this statement
is true, complete and correct.
Dated: March 31, 1995
/s/Marilyn Roshwalb
-----------------
Marilyn Roshwalb
SHAREHOLDERS AGREEMENT
This Shareholders Agreement ("Agreement"), dated as of as of
February 9, 1995, by and between The Triangle Corporation, a Delaware
corporation (the "Surviving Corporation"), and the Estate of Irving
Roshwalb ("Shareholder").
WITNESSETH
WHEREAS, the Surviving Corporation and Audits & Surveys, Inc., a New
York corporation (sometimes referred to as the "Merging Corporation"), are
parties to a Merger Agreement, dated August 10, 1994, as amended to date
(the "Merger Agreement"); and
WHEREAS, the Shareholder is the legal and beneficial owner of
certain shares of the Merging Corporation Capital Stock currently
outstanding;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the undersigned hereby
agree as follows:
SECTION 1. Defined Terms. All capitalized terms used herein and
not otherwise defined herein shall have the respective meanings attributed
thereto in the Merger Agreement.
SECTION 2. Voting Agreement. Upon the effectiveness of the Merger,
compliance by Audits and Surveys, Inc. (and the Surviving Corporation,
after the effectiveness of the Merger) with the payment obligations set
forth in a certain letter agreement dated the date hereof among Audits and
Surveys, Inc., the Shareholder, and Marilyn Roshwalb, and for so long as
the Shareholder owns shares in the Surviving Corporation, the undersigned
Shareholder agrees to Vote any and all shares of Surviving Corporation
Common Stock owned by it from time to time as follows: (i) for so long as
Arthur Bellows, Jr. ("Bellows")remains an employee of the Surviving
Corporation, for the election of Bellows to the Surviving Corporation's
Board of Directors; and (ii) at the Surviving Corporation's 1995 and 1996
annual meetings of shareholders, or in connection with any consents of
shareholders to elect directors solicited prior to the Surviving
Corporation's 1997 annual meeting of shareholders, for the election to the
Surviving Corporation's Board of Directors of three nominees (inclusive of
Bellows, if he is a Director pursuant to clause (i) above or otherwise) to
be designated from time to time by Bellows (or, in the event that Bellows
is deceased prior to such time, by the
<PAGE> 2
Surviving Corporation's Directors last designated by Bellows). For
purposes of this Section 2 only, the term "Vote" shall mean and include
(i) voting said shares of Surviving Corporation Common Stock, whether by
person or by proxy, at any meeting of the Surviving Corporation's
shareholders at which an election of directors is being held, and (ii)
executing any written consents of shareholders of the Surviving
Corporation holding a majority of the Surviving Corporation Capital Stock
then outstanding as are reasonably requested by Bellows to effect the
provisions of this Section 2.
SECTION 3. Miscellaneous.
(a) This Agreement shall be governed by, and construed in
accordance with, the applicable laws pertaining in the State of New York
(other than those that would defer to the substantive laws of another
jurisdiction).
(b) This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns, legal
representatives and heirs.
(c) This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
(d) Each party hereto acknowledges and agrees that the other
parties would be irreparably damaged in the event any provisions of this
Agreement are not performed in accordance with their specific terms or are
otherwise breached. Each party agrees that the others shall be entitled
to an injunction or injunctions to prevent breaches of the provisions of
this Agreement and to specifically enforce this Agreement and the terms
and provisions hereof in any action instituted in any court having
jurisdiction over the party and/or the matter, in addition to any other
remedy to which the aggrieved party may be entitled at equity or at law.
(e) Each and every modification and amendment of this
Agreement shall be in writing and signed by the parties hereto who at the
time are shareholders or the Surviving Corporation, and any waiver of, or
consent to any departure from, any term or provision of this Agreement
shall be in writing and signed by each affected party hereto.
(f) Upon the Effective Time of the Merger, all provisions
contained in prior shareholders agreements between the Shareholders and
the Merging Corporation insofar as they relate to (i) restrictions on sale
of Merging Corporation Capital Stock while the Shareholder is an employee
of the Merging Corporation; (ii) obligations of the Shareholder to offer
to sell his Merging Corporation Capital Stock in the event of his
termination of employment by the Merging Corporation; (iii) obligations of
the Shareholder's estate to sell Shareholder's Merging Corporation Capital
Stock in the event of the Shareholder's death; (iv) obligations of the
Merging Corporation or any of the other Shareholders to purchase any of
the Shareholder's Merging Corporation Capital Stock; and (v) pre-emptive
<PAGE> 3
rights or rights of first offer in favor of any of the Shareholders, shall
cease and be of no further force or effect, and any and all rights of any
party thereunder to enforce such provisions shall cease and expire.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first set forth above.
THE TRIANGLE CORPORATION
By: /s/ H. Arthur Bellows, Jr. _
----------------------------------
Name: H. Arthur Bellows, Jr.
Its: Chairman and President
ESTATE OF IRVING ROSHWALB
By: /s/ Marilyn Roshwalb _
----------------------------------
Name: Marilyn Roshwalb
Its: Executrix
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of February 9, 1995 by and among
Solomon Dutka ("Dutka"), the Estate of Irving Roshwalb (the "Estate"),
H. Arthur Bellows, Jr. ("Bellows") (Dutka, the Estate and Bellows being
referred to herein from time to time each individually as a "Shareholder"
and collectively as the "Shareholders") and The Triangle Corporation, a
Delaware corporation (the "Company").
W I T N E S S E T H:
Whereas, Dutka and the Estate will acquire shares of common stock, par
value $.01 per share, of the Company (the "Common Stock") as a result of a
merger (the "Merger") of Audits and Surveys, Inc., a New York corporation
("A&S") into the Company pursuant to a Merger Agreement dated as of August 10,
1994, as amended to date, by and between A&S and the Company (the "Merger
Agreement");
Whereas, Bellows is currently a holder of Common Stock of the Company and
will continue to be a holder of Common Stock of the Company following the
Merger;
Whereas, the Shareholders and the Company desire to provide certain
registration rights in connection with the Common Stock; and
Whereas, at the effective time of the Merger the Company will change its
name to "Audits & Surveys Worldwide, Inc.";
Now, Therefore, in consideration of the premises and of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties, intending to be legally bound hereby, agree as follows:
ARTICLE I.
REGISTRATION RIGHTS
Section 1.01. Demand Registration. (a) The Company agrees that upon
receipt of a written request therefor from Dutka alone or together with Estate
in accordance with and subject to the provisions of this Article I (a "Demand
Request"), the Company shall, as promptly as practicable thereafter, file with
the Securities and Exchange Commission (the "SEC")
<PAGE> 2
a registration statement (a "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act") to register for
distribution to the public the Common Stock specified in the Demand
Request and thereafter shall file such amendment or amendments to such
Registration Statement as shall be necessary to cause the same to become
effective and to remain effective for the period specified in Section
1.01(b). If the applicable requirements therefor are met, the
Registration Statement shall be filed on Form S-3; otherwise the
Registration Statement shall be filed on such form as the Company may be
entitled or required to utilize under the rules and regulations of the
SEC then in effect. Subject to the provisions of Section 1.01(c), Dutka
and the Estate shall be entitled to have only one Registration Statement
declared and kept effective for the period specified in Section 1.01(b).
(b)The Demand Request shall be for the registration of not less than
900,000 and not more than 3,250,000 shares of Common Stock, which numbers
shall be proportionally adjusted to reflect any stock dividend, subdivision,
reclassification, recapitalization, split-up, combination or exchange of
shares or the like. Except as otherwise specified in this Agreement, the
Company shall be obligated to obtain and maintain the effectiveness of
the Registration Statement for one hundred and eighty (180) days, which
period shall be extended by the length of any period or periods of market
standoff pursuant to Section 1.10. The Demand Request may be made at any
time commencing six months after the effective time of the Merger.
(c)The Demand Request will be deemed not to have been made (i) if at any
time prior to the effective date of the Registration Statement the Shareholder
or Shareholders who made the Demand Request advise the Company in writing
that he or they are withdrawing such Demand Request, that such withdrawal
is based upon a good faith belief that market conditions are adverse for
an offering of his, it or their shares of Common Stock and that he, it
or they will reimburse the Company for its or their respective fees and
expenses incurred to such date in preparing such Registration Statement
or (ii) in accordance with Section 1.03 or Section 1.06.
Section 1.02. Piggyback Registration. In the event that the Company has
received a Demand Request from Dutka alone or together with the Estate or if
the Company determines in its sole discretion to register any of its Shares
of Common Stock for its own account (a "Primary Offering"), the Company
shall promptly give each Shareholder written notice (a "Notice") of its
intent to file a Registration Statement, the underwriter therefor (if
any) and the number of shares of Common Stock of the Company, Dutka, or
the Estate to be registered subject to the provisions of this Article I
(including the underwriting requirements of Section 1.08). If, within
fifteen (15) days after the Company gives the Shareholders a Notice, the
Company receives from any Shareholder a written request to include in
such Registration Statement shares of Common Stock of the Company owned
by him, specifying the number of shares of Common Stock to be so included
(a "Piggyback Request"), the Company will include in such Registration
Statement such number of shares of Common Stock or such lesser number of
shares of Common Stock as the underwriter of such offering reasonably and
in good faith determines will not materially and adversely affect such
offering, as provided in Section 1.03.
<PAGE> 3
Section 1.03. Allocation of Common Stock Included in Registration
Statement. In case the Company files a Registration Statement either as a
Primary Offering or pursuant to a Demand Request, with or without a Piggyback
Request (in either event, a "Request"), which is underwritten, if the
underwriter shall advise the Company and the Shareholder or Shareholders whose
shares of Common Stock of the Company are being included therein (individually,
a "Selling Shareholder" and collectively, the "Selling Shareholders") in
writing, that (i) the inclusion in any Registration Statement pursuant
to this Agreement of some or all of the shares of Common Stock sought to
be registered by the Selling Shareholders creates a substantial risk that
the per share proceeds from the offer of such shares of Common Stock will
be reduced or (ii) the number of shares of Common Stock sought to be
registered is too large a number to be reasonably sold, then the number
of shares of Common Stock sought to be registered by each Shareholder
(other than the Estate) shall first be reduced pro rata based upon the
percentage of the shares of Common Stock which each such Shareholder
requested be included in the Registration Statement and then, if
necessary, the number of shares of Common Stock which the Estate
requested be included in the Registration Statement shall be reduced.
If the reduction in the number of shares of Common Stock exceeds 15%, the
Shareholder or Shareholders who made the Demand Request may withdraw the
Demand Request within twenty-four (24) hours after having been advised
of such reduction.
Section 1.04. Obligation of the Shareholders. Any Request shall express
the Shareholders' present intent to offer for public distribution pursuant
to the prospectus included in the Registration Statement the number of
shares of Common Stock included in the Request and contain an undertaking
by the Shareholder to provide all such information and materials and to
take all such actions as may be required in order to comply and permit
the Company to comply with all applicable laws and the requirements of
the SEC and to obtain acceleration of and maintain effectiveness of the
Registration Statement as required by this Article I.
Section 1.05. Obligations of the Company. The Company shall:
(a) use its best efforts to have the Registration Statement declared
effective as promptly as reasonably practicable except as provided in Section
1.06 and shall promptly notify the Selling Shareholders and such other persons
as the Selling Shareholders designate, if any, and confirm such advice in
writing (i) when such Registration Statement becomes effective, (ii) when
any post-effective amendment to such Registration Statement becomes
effective, (iii) when any request is made by the SEC for any amendment
or supplement to such Registration Statement or any prospectus relating
thereto or for additional information, and (iv) when such Registration
Statement must be supplemented or amended;
(b) make available for inspection and copying by any underwriters
participating in any disposition of Common Stock and any attorney, accountant
or other agent retained by any Selling Shareholder or underwriter, all
financial and other records reasonably necessary to permit such persons to
demonstrate that they have conducted a "reasonable investigation", as that term
is used in Section 11 of the Securities Act, of matters described in the
Registration Statement and cause the appropriate officers of the Company
<PAGE> 4
to supply all such information reasonably requested by the Selling
Shareholders, the underwriters or their agents in connection therewith;
(c) use its best efforts to qualify, not later than the effective date
of such Registration Statement, the shares of Common Stock being registered
under such "blue sky" or other state securities laws as the Selling
Shareholders may reasonably request; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation or as a dealer
in securities in any jurisdiction other than New York State or to execute
or file any general consent to service of process under the laws of any
such jurisdiction where it is not so subject;
(d) furnish to the Selling Shareholders such number of copies of the
Registration Statement, each amendment thereto, the prospectus included in each
such Registration Statement and each amendment thereto, each amendment or
supplement to any prospectus and such other documents as the Selling
Shareholders may reasonably request in order to facilitate the disposition of
the Common Stock being registered; and
(e) for a period of at least one hundred and eighty (180) days from the
effective date of such Registration Statement, subject to extension for any
period during which Selling Shareholders are not permitted to sell their shares
of Common Stock thereunder, use its best efforts to keep such Registration
Statement current and promptly amend or supplement such Registration Statement
or the prospectus relating thereto to the extent necessary to permit the
completion within said period, in compliance with the Securities Act, of the
sale or distribution of the shares of Common Stock being registered. If at any
time the SEC should institute or threaten to institute any proceedings for the
purpose of issuing a stop order suspending the effectiveness of any such
Registration Statement, the Company will promptly notify the Selling
Shareholders thereof and will use all reasonable efforts to prevent the
issuance of any such stop order or to obtain the withdrawal thereof as soon as
possible. The Company will promptly advise the Selling Shareholders of any
order or communication of any public board or body addressed to the Company
suspending or threatening to suspend the qualification of any of the shares of
Common Stock being registered for sale in any jurisdiction or of any other
reason for the suspension of sales of Common Stock in any jurisdiction.
Section 1.06. Conditions to the Obligations of the Company. the Company
shall be entitled to postpone, for up to one hundred and eighty (180) days, the
preparation or filing of any Registration Statement otherwise required to be
prepared and filed by it pursuant to this Agreement and the satisfaction of its
obligations under Section 1.05, if the Company would be required to prepare any
financial statements other than those it customarily prepares or if the Board
of Directors of the Company determines in its reasonable business judgment that
such registration and offering would interfere with any material financing,
acquisition, corporate reorganization or other material corporate transaction
or material development involving the Company and if the Company promptly gives
the Shareholder or Shareholders who made the Demand Request written notice of
such determination; provided that in any such event, the Company shall use all
reasonable efforts to minimize the duration of the postponement. If the Company
<PAGE> 5
shall so postpone the filing of a Registration Statement, the Shareholder or
Shareholders who made the Demand Request shall have the right to withdraw such
Request by giving written notice to the Company within twenty (20) days after
the receipt of the notice of postponement, in which event the Demand Request
shall be deemed to have not been made. The Company shall have the right in its
sole discretion to withdraw any Registration Statement which covers in whole or
in part a Primary Offering.
Section 1.07. Expenses of Registration. All expenses (other than
underwriting or brokerage discounts and commissions and transfer taxes) incurred
in connection with a Registration Statement and the "blue sky" qualifications
related thereto, including without limitation, all registration and
qualification fees, printers' and accounting fees and fees and disbursements of
counsel for the Company, shall be borne by the Company; except that the Company
will not bear fees or expenses of any attorney, accountant or other person
retained by a Shareholder unless that person has also been retained by the
Company to render like services to it in connection with the Registration
Statement.
Section 1.08. Underwriting Requirements. The Company shall have the
right to require that any offering of shares of Common Stock pursuant to a
Request be underwritten. The Company shall have the right to approve (such
approval not to be unreasonably withheld or delayed) the underwriter or
underwriters, including the managing or lead underwriter or underwriters,
who are to undertake any offering of shares of Common Stock of the Company with
respect to which Dutka and the Estate have registration rights pursuant to
Section 1.01 hereof. The Company shall have the right in its sole discretion
to select the underwriter or underwriters, including the managing or lead
underwriter or underwriters, who are to undertake any Primary Offering,
including one which contains shares of Common Stock offered for sale by the
Selling Shareholders. No Shareholder may participate in any underwritten
offering hereunder unless such Shareholder agrees to sell his shares of Common
Stock on the basis provided in any underwriting arrangements approved by the
Company and completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
Section 1.09. Indemnification. In the event any shares of Common Stock
are included in a Registration Statement pursuant to this Article I, to the
extent permitted by law, the Company will indemnify and hold harmless the
Shareholders, any underwriter (as defined in the Securities Act) for the
Company or acting on behalf of the Shareholders, each Shareholder and
each person, if any, who is a director, officer, agent, partner or
shareholder of, or who controls, any Shareholder or such underwriter,
against losses, claims, damages or liabilities customarily indemnified
against in secondary offerings, underwritten or not, as the case may be.
In addition, each Shareholder whose shares of Common Stock are included
in a Registration Statement agrees, to the extent permitted by law,
severally but not jointly, to indemnify and hold harmless the Company,
any underwriter, each other Shareholder whose shares of Common Stock are
included in such Registration Statement and each person, if any, who is
a director, officer, agent, partner or shareholder of, or who controls,
the Company, such underwriter or such other Shareholders, against losses,
claims, damages or liabilities with respect to information provided by
<PAGE> 6
such Shareholder in writing specifically for inclusion in the
Registration Statement. The indemnification provided for in this Section
1.09 shall, at the Company's option, be pursuant to either the
underwriting agreement (if any) or a separate indemnification agreement
and shall include equitable contribution based upon considerations of
relative fault in the manner and to the extent customarily provided.
Section 1.10. Market Stand-Off Agreement. If requested by the Company
and an underwriter, or as otherwise required by applicable law, no Shareholder
shall sell any securities of the Company (other than those included in
the Registration Statement) from such request through and including the
one hundred eighty (180) day period following the effective date of the
Registration Statement, provided that all other executive officers and
directors of the Company enter into similar agreements. The obligations
described in this Section 1.10 shall not apply to a Registration
Statement relating solely to employee benefit plans or a registration
statement relating solely to a Rule 145 transaction. The Company may
impose stop-transfer instructions with respect to the securities subject
to the foregoing restrictions until the end of such one hundred eighty
(180) day period. The Company agrees not to offer or sell any shares of
its Common Stock (or securities convertible into or exercisable for
shares of its Common Stock) in an underwritten registered public offering
for a like period if requested by any underwriter of any offering of
shares of Common Stock effected by a Registration Statement pursuant to
a Request.
Section 1.11. Limitations on Dutka and Bellows. Notwithstanding
anything to the contrary contained herein, neither Dutka nor Bellows may
include in any Registration Statement filed under this Agreement more than 20%
of the number of shares of Common Stock owned by him at the effective time of
the Merger and giving effect thereto. The foregoing limitation shall
expire on the earlier of (i) the second anniversary of the effective time
of the Merger or (ii) the termination without cause of such person's
employment by the Corporation.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.01. Representations and Warranties of Shareholders. Each
Shareholder hereby represents and warrants to the other parties hereto as
follows:
(a) Such Shareholder has full legal right, power, authority and
capacity to enter into and perform this Agreement. This Agreement is a valid
and binding obligation of such Shareholder enforceable against such Shareholder
in accordance with its terms, except that such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
(b) Neither the execution and delivery of this Agreement by such
Shareholder nor the consummation by such Shareholder of the transactions
<PAGE> 7
contemplated hereby conflicts with or constitutes a violation of or default
under any statute, law, rule, regulation, order or decree applicable to such
Shareholder, or any contract, commitment, agreement, arrangement or
restriction of any kind to which such Shareholder is a party or by which
such Shareholder is bound.
Section 2.02. Representations and Warranties of the Company. The
Company hereby represents and warrants to the other parties hereto as follows:
(a) The Company has full legal right, power and authority to enter
into and perform this Agreement. The execution and delivery of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on behalf of the Company. This Agreement is a valid and binding obligation of
the Company enforceable against the Company in accordance with its terms,
except that such enforcement may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(b) Neither the execution and delivery of this Agreement by the
Company nor the consummation by the Company of the transactions contemplated
hereby conflicts with or constitutes a violation of or default under the
Certificate of Incorporation or By-Laws of the Company, any statute, law,
rule, regulation, order or decree applicable to the Company, or any
contract, commitment, agreement, arrangement or restriction of any kind
to which the Company is a party or by which the Company or any of its
assets are bound.
ARTICLE III.
MISCELLANEOUS
Section 3.01. Entire Agreement. This Agreement constitutes the entire
understanding of the parties with respect to the subject matter hereof.
Section 3.02. Enforcement. (a) The Shareholders and the Company each
acknowledge and agree that irreparable damage would occur if any of the
provisions of this Agreement were not complied with in accordance with their
specific terms. Accordingly, each of the parties will be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically its provisions in any court of the United States or
any state having jurisdiction, this being in addition to any other remedy
to which they may be entitled at law or in equity.
(b) No failure or delay on the part of any party in the exercise of any
power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege
preclude other or further exercise thereof or of any other right, power or
privilege.
<PAGE> 8
Section 3.03. Governing Law. This Agreement will be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without giving effect to the conflict of laws principles thereof.
Section 3.04. Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be unenforceable, the remaining
provisions of this Agreement shall remain in full force and effect.
Section 3.05. Headings. Descriptive headings are for convenience of
reference only and will not control or affect the meaning or construction of
any provision of this Agreement.
Section 3.06. Counterparts. This Agreement may be executed in two or
more counterparts, and each such executed counterpart will be an original
instrument.
Section 3.07. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for in this Agreement and all legal
process in regard to this Agreement will be validly given, made or served, if
in writing and delivered personally, by telecopy (except for legal process)
or sent by overnight delivery service providing a receipt for delivery or by
registered mail postage paid.
If to the Company, to it at:
650 Avenue of the Americas
New York, NY 10011
212-637-9700
212-243-5748 (fax)
If to Dutka, to him at:
2600 Netherland Avenue
Riverdale, NY 10463
718-543-1567
If to the Estate, to it at:
9 Sycamore Drive
Great Neck, NY 11021
516-466-3679
If to Bellows, to him at:
15 Upper Cross Road
Greenwich, CT 06831
203-869-7024
or to such other address or telecopy number as any party may, from time
to time, designate in a written notice given in a like manner. Notice
by telecopy shall be deemed delivered on the date telephone confirmation
of receipt is given.
<PAGE> 9
Section 3.08. Assignment; No Third-Party Beneficiaries. Except
as expressly provided in this Agreement, this Agreement and the rights,
duties and obligations hereunder may not be assigned or delegated by any
party without the prior written consent of the Company and the
Shareholders, except it shall be assignable to, and binding upon, any
successor to the business of the Company, the Estate, or beneficiaries
of Dutka or Bellows, the beneficiaries of the Estate, and Allan Roshwalb.
Any other assignment or delegation of rights, duties or obligations
hereunder made without the prior written consent of the Company and the
Shareholders shall be void and of no effect. This Agreement is intended
for the benefit of and is enforceable only by the Company and the
Shareholders and shall be binding upon the Shareholders, the Company, the
respective estates and legal representatives of each Shareholder and any
successor of the Company.
Section 3.09. Term. This Agreement is being signed in
contemplation of the Merger Agreement, shall become operative upon the
effective time of the Merger and shall continue in full force and effect
until the completion and/or the expiration of the respective rights and
obligations herein. In the event the Merger Agreement is terminated,
this Agreement shall terminate upon the termination of the Merger
Agreement.
In Witness Whereof, the parties hereto have caused this
Agreement to be executed as of the date first referred to above.
The Triangle Corporation
By: /s/H. Arthur Bellows
--------------------------
Name: H. Arthur Bellows
Title: Chairman and President
/s/ Solomon Dutka
---------------------------
Solomon Dutka
Estate of Irving Roshwalb
By: /s/Marilyn Roshwalb
--------------------------
Name: Marilyn Roshwalb
Title: Executrix
/s/H. Arthur Bellows, Jr.
---------------------------
H. Arthur Bellows, Jr.
