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 $.01 per share_____________
(Title of Class of Securities)
_______________________050839109_____________________
(CUSIP Number)
Michael J. Shef, Esq.
Parker Chapin Flattau & Klimpl, LLP)
1211 Avenue of the Americas
New York, NY 10036
_________________________(212) 704-6000_________________________
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
____________________March 24, 1995____________________
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Sched-
ule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule
13d(I(b)(3) or (4), check the following box /__/.
Check the following box if a fee is being paid with the state-
ment /__/. (A fee is not required only if the reporting person:
(1) has a previous statement on file reporting beneficial owner-
ship 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 amend-
ment containing information which would alter disclosures pro-
vided 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 liabil-
ities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
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Page 2 of 7 Pages
SCHEDULE 13D
1. NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON: Solomon Dutka
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: 4,844,905
8. SHARED VOTING POWER:
9. SOLE DISPOSITIVE POWER: 4,844,905
10;. SHARED DISPOSITIVE POWER:
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PER-
SON: 4,844,905
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CER-
TAIN SHARES: ____
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 37%
14. TYPE OF REPORTING PERSON: IN
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Page 3 of 7 Pages
SCHEDULE 13D
Item 1. Security and Issuer
This schedule relates to the common stock, par value
$.O1 per share (the "Common Stock") of Audits & Surveys
World wide, Inc. (the "Company"). The principal executive
offices of the Company are located at 650 Avenue of the
Americas, New York, NY 10011.
Item 2. Identity and Background
This schedule is being filed on behalf of Dr. Solomon
Dutka.
(a) Dr. Solomon Dutka
(b) 650 Avenue of the Americas
New York, NY 10011
(c) Chairman of the Board and Chief Executive Officer
of the Company.
(d) Dr. Dutka has not, during the last five years,
been convicted in a criminal proceeding (exclud-
ing traffic violations or similar misdemeanors).
(e) Dr. Dutka has not, during the last five years,
been a party to a civil proceeding as a result of
which Dr. Dutka was or is subject to a decree or
final order enjoining future violations of or
prohibiting or mandating activities subject to
Federal or state securities law or finding any
violation with respect to such laws.
(f) U.S.A.
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&S"), pursuant to which Merger each
share of A&S's common stock outstanding prior to the consumma-
tion of the Merger was exchanged for 1,407.565 shares of the
Company's Common Stock.
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Page 4 of 7 Pages
Prior to the consummation of the Merger, Solomon Dutka
owned 3,442.047 shares of A&S. All of these shares were
exchanged for the securities reported hereby.
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.
Dr. Dutka does not have any present plans which relate
to or which would result in the acquisition of any additional
securities of the Company, nor does he have any present plans or
proposals which would relate to or result in: an extraordinary
corporate transaction, such as a merger, reorganization or
liquidation involving the Company or any of its subsidiaries; a
sale or transfer of a material amount of the assets of the Com-
pany or any of its subsidiaries; any change in the present board
of directors or management of the Company, including any plans
or proposals to change the number or term of directors or to
fill any existing vacancies on the board; any material change in
the present capitalization or dividend policy of the Company;
any other material change in the Company's business or corporate
structure; causing a class of securities of the Company to be
delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a
registered national securities association; a class of equity
securities of the Company becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Act; or any
action similar to any of those enumerated above.
Dr. Dutka may propose at the next stockholders meeting
that articles Tenth, Eleventh and Twelfth of the Company's
Restated Certificate of Incorporation be repealed. Article
Tenth requires a supermajority vote of the stockholders to
approve any merger, consolidation or other major corporate
change unless three-fifths of the Company's board of directors
have approved the change. Article Eleventh eliminates the use
of stockholder written consent and requires a supermajority
stockholder vote to call a special stockholders meeting, without
altering the ability of certain officers to call such a meeting,
as provided in the by-laws. Article Twelfth requires a
supermajority shareholder vote or a supermajority vote of the
board of directors to amend, alter or repeal any by-law which is
not inconsistent with Articles Tenth, Eleventh and Twelfth.
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Page 5 of 7 Pages
Other than the foregoing, Dr. Dutka has no present
plans which relate to or which would result in changes in the
Company's certificate of incorporation or by-laws.
Item 5. Interest in Securities of the Issuer
(a) Aggregate amount and percentage of shares benefi-
cially owned by Solomon Dutka: 4,844,905 (37%).
(b) Aggregate amount of shares Solomon Dutka has sole
power to direct the vote and disposition of:
4,844,905 (37%).
Aggregate amount of shares Solomon Dutka has
shared power to direct the vote and disposition
of: None (0%).
(c) None
(d) N/A
(e) N/A
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to
Securities of the Issuer
Dr. Dutka is a party to a shareholders agreement,
dated as of March 24, 1995 (the "Shareholders Agreement"), by
and between the Company, H. Arthur Bellows, and all persons who
were stockholders of A&S immediately prior to the Merger. The
Shareholders Agreement provides that, among other things, the
stockholders will not sell or transfer their shares of Common
Stock for a period of two years, except that Dr. Dutka may, pur-
suant to the registration rights agreement described below, sell
within the aforementioned two year period up to 20% of the
shares of Common Stock reported hereby pursuant to a registra-
tion statement effected under the Securities Act of 1933. The
Shareholder Agreement also provides that the stockholders will
vote their 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 annual meeting
of stockholders, or in connection with any consents of stock-
holders to elect directors prior to the Company's 1997 annual
meeting of stockholders, the stockholders will vote for the
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Page 6 of 7 Pages
election to the board of directors of three nominees designated
by H. Arthur Bellows, Jr. (inclusive of Mr. Bellows if he is
nominated).
Dr. Dutka is party to a registration rights agreement
(the "Registration Rights Agreement"), dated March 24, 1995,
with the Company and certain other persons, pursuant to which
Dr. Dutka has the right to request the Company to file a regis-
tration statement for not less than 1,384,500 and not more than
3,461,500 shares of Common Stock (such numbers to be adjusted
for dividends, stock splits, recapitalization and the like). As
mentioned above, Dr. Dutka may not include in any registration
statement filed under the Registration Rights Agreement more
than 20% of the shares of Common Stock reported hereby. This
limitation will expire on the earlier of March 24, 1997 or the
termination of Dr. Dutka's employment with the Company.
Item 7. Material to be Filed as Exhibits
1. Shareholders Agreement, dated as of March 24,
1995, among the Company, H. Arthur Bellows, Jr.
and each of the shareholders of Audits and Sur-
veys, Inc.
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.
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Page 7 of 7 Pages
Signatures
After reasonable inquiry and to the best of his knowl-
edge and belief, the undersigned certifies that the information
set forth in this statement is true, complete and correct.
Dated: March 31, 1995
Solomon Dutka
Exhibit 1 to
Schedule 13D
of Solomon Dutka
SHAREHOLDERS AGREEMENT
This Shareholders Agreement ("Agreement"), dated as of March
24, 1995, by and between Audits & Surveys Worldwide, Inc., a
Delaware corporation (the "Surviving Corporation"), H. Arthur
Bellows, Jr., (the "Surviving Corporation Shareholder"), Solomon
Dutka, Solomon Dutka Trust for James Dutka, Solomon Dutka Trust
for Michael Dutka, Solomon Dutka Trust for Joyce Dutka, Carl
Ravitch, Anthony Timiraos, Dexter Neadle, Lawrence Karp, George
Fabian, Fred Winkel, Joel S. Klein, William Liebman, Nagesh
Gupta, Thomas Ryan, Joel Dorfman, Josh Libresco, Donald Pace,
Paul Donato, Fred Nicholson, Joel J. Klein, (each, individually a
"Shareholder" and collectively the "Shareholders").
WITNESSETH
WHEREAS, the Surviving Corporation and Audits & Surveys,
Inc., a New York corporation (the "Merging Corporation"), are
parties to a Merger Agreement, dated August 10, 1994 (the "Merger
Agreement"); and
WHEREAS, it is a condition to the Surviving Corporation's
obligation to close the transaction contemplated by the Merger
Agreement that each shareholder of the Merging Corporation (other
than the Estate of Irving Roshwalb) execute and deliver this
Shareholders Agreement, and the Merging Corporation's obligation
to close the transactions contemplated by the Merger Agreement
that the Surviving Corporation Shareholder execute and deliver
this Shareholders Agreement; and
WHEREAS, the Shareholders, collectively, are the legal and
beneficial owners of all of the Merging Corporation Capital Stock
currently outstanding (other than the Merging Corporation Capital
Stock owned by the Estate of Irving Roshwalb);
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. Covenant Not to Sell. Each Shareholder and the
Surviving Corporation Shareholder, severally, hereby agrees that,
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<PAGE>
from the Effective Time and the occurrence of the Merger through
and until the second anniversary thereof (such period being
hereinafter referred to as the "Restrictive Period"), he shall
not sell, or in any other way directly or indirectly transfer,
convey, assign, distribute, encumber or otherwise dispose of any
Surviving Corporation Common Stock received as Share
Consideration (or, in the case of the Surviving Corporation
Shareholder, the Surviving Corporation Common Stock owned by the
Surviving Corporation Shareholder at the Effective Time);
provided, however, that (i) Solomon Dutka and the Surviving
Corporation Shareholder may, pursuant to the Registration Rights
Agreement, sell such shares of Surviving Corporation Common Stock
pursuant to a registration effected under the Securities Act in
accordance with said Registration Rights Agreement, (ii) in the
event that any Shareholder's employment is terminated by the
Surviving Corporation without cause, or by virtue of death or
disability, prior to the second anniversary of the Effective
Date, the restrictions of this Section 2 shall no longer be
applicable to such shareholder, and (iii) in the event that the
Surviving Corporation Shareholder's employment with the Surviving
Corporation ceases for any reason whatsoever prior to the second
anniversary of the Effective Date, the restrictions of this
Section 2 shall no longer be applicable to such shareholder.
Nothing contained herein shall preclude the Surviving Corporation
Shareholder or any Shareholder from making bona fide gifts of
shares of Surviving Corporation Common Stock; provided, however,
that the donee thereof shall remain bound by the provisions of
Sections 2, 3 and 4 as long as, and to the extent that, donor was
so bound, and all donees will execute and deliver a copy of this
Shareholders Agreement to the Surviving Corporation Shareholder
to evidence such binding effect.
SECTION 3. Voting Agreement. Each of the undersigned
Shareholders agrees to Vote any and all shares of Surviving
Corporation Common Stock owned by him from time to time as
follows: (i) for so long as the Surviving Corporation
Shareholder remains an employee of the Surviving Corporation, for
the election of the Surviving Corporation Shareholder 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 the Surviving Corporation Shareholder, if he is a
Director pursuant to clause (i) above or otherwise) to be
designated from time to time by the Surviving Corporation
Shareholder (or, in the event that the Surviving Corporation
Shareholder is deceased prior to such time, by the Surviving
Corporation's Directors last designated by the Surviving
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<PAGE>
Corporation Shareholder). For purposes of this Section 3 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 the
Surviving Corporation Shareholder to effect the provisions of
this Section 3.
SECTION 4. Restrictive Legend.
Each certificate representing shares of the Surviving
Corporation Common Stock which, as of the Effective Time, will be
held by a Shareholder or the Surviving Corporation Shareholder,
shall be endorsed with a legend in substantially the following
form:
"THE SALE OR TRANSFER OF THE SHARES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A
SHAREHOLDERS AGREEMENT DATED AS OF March 24, 1995 CONTAINING
RESTRICTIONS UPON SALE OR TRANSFER. A COPY OF SAID
AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE
CORPORATION."
Following the termination of the Restrictive Period,
upon the request of any Shareholder or the Surviving Corporation
Shareholder, the Surviving Corporation shall cause said
certificate to be reissued without the aforesaid legend.
SECTION 5. 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; provided, however, that
the provisions of Section 3 hereof shall not bind subsequent
purchasers for value of shares of Surviving Corporation Common
Stock.
(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.
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<PAGE>
(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, all provisions contained
in prior shareholders agreements between and among 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 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.
AUDITS & SURVEYS WORLDWIDE, INC.
By: /s/ Anthony Timiraos
Name: Anthony Timiraos
Title: Treasurer
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<PAGE>
/s/ Solomon Dutka
Solomon Dutka
SOLOMON DUTKA TRUST FOR JAMES DUTKA
By: /s/ Anthony Timiraos
Name: Anthony Timiraos
Title: Trustee
SOLOMON DUTKA TRUST FOR MICHEL DUTKA
By: /s/ Anthony Timiraos
Name: Anthony Timiraos
Title: Trustee
SOLOMON DUTKA TRUST FOR JOYCE DUTKA
By: /s/ Anthony Timiraos
Name: Anthony Timiraos
Title: Trustee
/s/ Carol Ravitch
Carl Ravitch
/s/ Anthony Timiraos
Anthony Timiraos
/s/ Dexter Neadle
Dexter Neadle
/s/ Lawrence Karp
Lawrence Karp
/s/ George Fabian
George Fabian
/s/ Fred Winkel
Fred Winkel
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<PAGE>
/s/ Joel S. Klein
Joel S. Klein
/s/ William Liebman
William Liebman
/s/ Nagesh Gupta
Nagesh Gupta
/s/ Thomas Ryan
Thomas Ryan
/s/ Joel Dofman
Joel Dorfman
/s/ Josh Libresco
Josh Libresco
/s/ Donald Pace
Donald Pace
/s/ Paul Donato
Paul Donato
/s/ Fred Nicholson
Fred Nicholson
/s/ Joel J. Klein
Joel J. Klein
/s/ H. Arthur Bellows, Jr.
H. Arthur Bellows, Jr.
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Exhibit 2 to
Schedule 13D of
Solomon Dutka
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of
February , 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
<PAGE>
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") 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
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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.
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
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<PAGE>
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 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
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<PAGE>
(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 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.
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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 arrange-
ments 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
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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
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.
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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 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,
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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.
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.
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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.
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
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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, Jr.
Name: H. Arthur Bellows, Jr.
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.
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