Exhibit H
PURCHASE AGREEMENT
(FIRECOM)
PURCHASE AGREEMENT dated as of October 25, 1996, by and
among ▇▇▇▇ ▇▇▇▇▇▇ ("PM"), ▇▇▇▇▇ ▇▇▇▇▇▇ ("CM") (PM and CM each a
"Buyer" and collectively "Buyers" and having an address at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
("HS"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("JS") (HS and JS each a "Seller" and
collectively "Sellers" and having an address at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 11021), FIRECOM HOLDINGS L.P., a
Delaware limited partnership ("FLP"), and MULTIPLEX ELECTRICAL
SERVICES, INC., a New York corporation ("Multiplex") (FLP and
Multiplex each having an address at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ 10010).
WHEREAS, Sellers, Buyers and Multiplex entered into a
Stock Purchase Agreement dated September 30, 1995 pursuant to
which Sellers sold to Buyers all of their shares of capital stock
of Multiplex (herein referred to as the "Separation Agreement")
and Multiplex and Sellers entered into a consulting agreement on
the same date (the "Consulting Agreement");
WHEREAS, Sellers are limited partners in FLP and
Sellers desire to sell to Buyers, and Buyers desire to purchase,
all of the partnership interests in FLP owned beneficially and of
record by Sellers, consisting of thirty-nine and six tenths
(39.6%) percent of the total partnership interests in FLP (the
"FLP Interests"), on the terms and conditions herein set forth;
WHEREAS, Sellers own beneficially and of record 514,801
shares of Common Stock of Firecom, Inc., a New York corporation
("Firecom"), and Sellers desire to sell to Buyers, and Buyers
desire to purchase, all of such shares of Firecom (the "Firecom
Shares") (the FLP Interests and the Firecom Shares collectively
referred to herein as the "Transferred Interests"); and
WHEREAS, Sellers, Buyers and Multiplex desire to make
certain amendments to the Separation Agreement and Multiplex and
Sellers desire to make certain amendments to the Consulting
Agreement.
NOW, THEREFORE, in consideration of the covenants
contained herein, the parties hereto agree as follows
(capitalized terms not defined herein shall have the meanings
assigned to them in the Separation Agreement):
1. PURCHASE OF TRANSFERRED INTERESTS. At the Closing
(defined below), Sellers shall sell, assign, transfer and deliver
to Buyers, and Buyers shall purchase from Sellers, the
Transferred Interests as follows: Sellers shall sell to PM, and
PM shall purchase, half of the FLP Interests (a 19.8% partnership
interest in FLP) and half of the Firecom Shares (257,401 shares
of Common Stock of Firecom); and Sellers shall sell to CM, and CM
shall purchase half of the FLP Interests (a 19.8% partnership
interest in FLP), and half of the Firecom Shares (257,400 shares
of Common Stock of Firecom). The Sellers must sell ALL the
Transferred Interests to Buyers simultaneously in order for any
of the Transferred Interests to be purchased.
2. PURCHASE PRICE. The aggregate purchase price for
the Transferred Interests (the "Purchase Price") shall be
$837,580.85, which Purchase Price shall be paid by Buyers in
accordance with Paragraph 3 of this Agreement. All payments of
the Purchase Price hereunder are to be made equally to HS and JS
individually.
3. PAVEMENT OF PURCHASE PRICE; SECURITY FOR DEFERRED
PAYMENTS.
(a) At Closing, Buyers shall pay to Sellers the
sum of $200,580.85 in cash by certified or bank cashiers check or
wire transfer. The balance of the cash portion of the Purchase
Price, after application of the credit of such closing date cash
payment, which balance is $637,000, shall then be paid in
accordance with the terms of Paragraph 3(b) of this Agreement.
(b) At the Closing, Buyers shall deliver their
Promissory Note in the form of Exhibit A hereto ("Promissory
Note") providing for payment, after giving effect to the payment
described in Paragraph 3(a) of this Agreement, of the balance of
the Purchase Price of $637,000 (the "Deferred Purchase Price"),
together with interest on the unpaid balance thereof computed at
a rate of eight (8%) percent per annum from the Closing Date, in
sixteen (16) equal consecutive quarterly installments (inclusive
of principal and interest) of $46,915.14 each, commencing on the
date which is three (3) months after the Closing Date and
continuing every three (3) months thereafter until all sixteen
installments have been paid.
The Promissory Note shall further provide that Buyers shall have
the right to prepay all or any portion of the outstanding balance
under such Promissory Note, together with interest accrued to the
date of payment, at any time and from time to time, without
premium or penalty. The Promissory Note shall also provide that
the Promissory Note shall, at the option of Sellers, become
immediately due and payable in the event Buyers shall fail to
make any payments due under the Promissory Note and such failure
shall continue more than ten (10) days after written notice of
such failure from Sellers to Buyers.
(c) As collateral security for the Deferred Purchase
Price, the FLP Interests and the Firecom Shares shall be held in
escrow by Seller's counsel, Carb, Luria, Glassner, Cook, ▇▇▇▇▇▇
LLP ("Escrow Agent") pursuant to the Escrow Agreement delivered
at the Closing (the "Escrow Agreement").
4. ALLOCATION OF PURCHASE PRICE. The allocation of
the Purchase Price for the Transferred Interests shall be as
follows:
(i) $437,580.85 for the purchase of the Firecom
Shares; and
(ii) $400,000.00 for the purchase of the FLP
Interests
5. REPRESENTATIONS AND WARRANTIES OF SELLERS.
Sellers hereby jointly and severally represent and warrant to
Buyers as follows:
(a) AUTHORITY RELATIVE TO AGREEMENTS. Each
Seller has the legal right, power, capacity and authority to
execute, deliver and perform their obligations under this
Agreement and each agreement, document or instrument contemplated
hereby. The execution, delivery and performance by each Seller of
this Agreement and each such agreement, document or instrument,
and the consummation of the transactions contemplated hereby and
thereby, have been authorized by all necessary action and,
subject to the consent of PM as general partner of FLP (the "PM
Consent"), (i) do not require the consent, waiver, approval,
license or authorization of any person, entity, or public
authority, (ii) do not violate, with or without the giving of
notice and/or the passage of time, any provision of law, and
(iii) will not conflict with or result in a breach or termination
of any provision of, or constitute a default or give rise to a
right of termination or acceleration under, any partnership
agreement, partnership or business certificate, mortgage, deed of
trust, indenture or other agreement or instrument, or any order,
judgment, decree, statute, regulation or any other restriction of
any kind or character, to which Sellers or, to Sellers'
knowledge, FLP is a party or by which any of their or its assets
or properties may be bound, or result in the creation of any
lien, charge or encumbrance upon any of the assets of FLP.
(b) EFFECT OF AGREEMENT. This Agreement has been
duly executed and delivered by Sellers and constitutes, and each
other agreement, document, certificate or instrument contemplated
by this Agreement when executed and delivered shall constitute, a
legal, valid and binding obligation of Sellers enforceable
against them in accordance with its terms.
(c) TITLE TO THE TRANSFERRED INTERESTS. Sellers
are the record and beneficial owners of the FLP Interests
(constituting 39.6 percent of the partnership interests in FLP),
and the Firecom Shares constituting 514,801 shares of Common
Stock of Firecom, par value one cent ($0.01) per share), free and
clear of any and all liens, pledges, restrictions, options,
rights of first refusal, encumbrances, charges, voting trusts,
proxies, powers of attorney, agreements or claims of any kind
whatsoever (collectively "Claims"), other than, in the case of
the FLP Interests, the FLP limited partnership agreement dated
November 14, 1991 (the "LPA"). Sellers have the legal right,
power and authority to sell, assign, transfer and deliver the
Transferred Interests to Buyers as provided in this agreement,
and such delivery will convey to Buyers lawful, valid and
marketable title to the Transferred Interests, free and clear of
any and all Claims (other than, the case of the FLP Interests,
the LPA). The FLP Interests constitute Sellers' entire
beneficial and record interest as partners in FLP; and the
Firecom Shares constitute Seller's entire beneficial and record
interest in the capital stock of Firecom. Sellers have never
sold, transferred, assigned, pledged or granted a security
interest in any portion of the Transferred Interests and Sellers
have never given any proxy or power of attorney with respect to
the Transferred Interests, except in the case of the Firecom
Shares, for the proxy to Buyers granted September 30, 1995
pursuant to the Separation Agreement.
(d) SUBSIDIARIES; AFFILIATES. Sellers have not
caused FLP to own or to enter into any agreement of any nature to
acquire, beneficially or of record, directly or indirectly, any
shares of any class of capital stock of any corporation (except
in the case of FLP, for its ownership of shares of the Class A
Preferred Stock of Firecom ("Firecom Preferred Stock")), nor have
Sellers caused FLP (i) to have an ownership interest in any other
person or entity, (ii) to own and operate its business and assets
other than directly and exclusively through the partnership
entity thereof or (iii) to own and operate its business through
(x) a direct or indirect or affiliated corporation, subsidiary,
partnership, joint venture or other entity of any kind or (y) any
partner or affiliate thereof or (iv) to acquire any interest in
real or personal property.
(e) LITIGATION, CLAIMS, ETC. To the best of
Sellers' knowledge, there are no judgments, liens, suits,
actions, investigations or proceedings filed, pending or
threatened in or before any court or government agency or office
against FLP (other than those as to which Buyers have actual
knowledge on the date of this Agreement).
(f) DISCLOSURE. Neither this Agreement, nor any
certificate, exhibit, schedule, list or other document or data
furnished or to be furnished to Buyers by or on behalf of Sellers
pursuant to or in connection with the negotiation, execution and
delivery of this Agreement and transactions contemplated by this
Agreement contains or will contain any untrue statement of any
material fact, or omits or will omit to state a material fact
necessary to make the statements herein or therein not
misleading.
6. REPRESENTATIONS AND WARRANTIES OF BUYERS. Buyers
hereby jointly and severally represent and warrant to Sellers as
follows:
(a) AUTHORITY RELATIVE TO AGREEMENTS. Each Buyer
has the legal right, power, capacity and authority to execute,
deliver and perform their obligations under this Agreement and
each agreement, document or instrument contemplated hereby. The
execution, delivery and performance by each Buyer of this
Agreement and each such agreement, document or instrument, and
the consummation of the transactions contemplated hereby and
thereby, have been authorized by all necessary action, and
subject to the PM Consent, (i) do not require the consent,
waiver, approval, license or authorization of any person, entity,
or public authority, (ii) do not violate, with or without the
giving of notice and/or the passage of time, any provision of
law, and (iii) will not conflict with or result in a breach or
termination of any provision of, or constitute a default or give
rise to a right of termination or acceleration under, any
partnership agreement, partnership or business certificate,
mortgage, deed of trust, indenture or other agreement or
instrument, or any order, judgment, decree, statute, regulation
or any other restriction of any kind or character, to which
Buyers are a party or by which any of their assets or properties
may be bound.
(b) EFFECT OF AGREEMENT. This Agreement has been
duly executed and delivered by Buyers and constitutes, and each
other agreement, document, certificate or instrument contemplated
by this Agreement when executed and delivered shall constitute, a
legal, valid and binding obligation of Buyers enforceable against
them in accordance with its terms.
(c) LITIGATION, CLAIMS. ETC. To the best of
Buyers' knowledge, there are no judgments, liens, suits, actions,
investigations or proceedings filed, pending or threatened in or
before any court or government agency or office against FLP
(other than those as to which Sellers have actual knowledge on
the date of this Agreement).
7. INDEMNITIES, RELEASES AND ADDITIONAL COVENANTS.
(a) Except for the LPA, the Separation Agreement
and this Agreement and documents required to be executed hereby
or thereby and payments to be made thereunder, any written or
oral partnership, buy/sell, stock option, warrant, voting, proxy,
subscription, pre-incorporation, buy-out, right of first refusal,
employment, consulting, management, commission, sales
representative, agency, retirement, or severance agreement or
other agreement providing for compensation or benefits to any of
Sellers or arrangements with respect to the partnership interests
of FLP, and the Firecom Shares, of or relating to FLP, Firecom,
Sellers and Buyers, shall, at the Closing, without any further
action by the parties hereto, terminate and be of no further
force or effect, it being understood and agreed that the payments
to Sellers (and the assumption of obligations and indemnities in
favor of Sellers) provided for under this Agreement completely
supersede and replace any alternative provisions or arrangements,
if any, which may have existed between the parties with respect
to the FLP Interests, the Firecom Shares, or the dissolution or
liquidation of FLP, or benefits upon the death, retirement,
termination, withdrawal or separation from FLP of Sellers.
(b) Sellers hereby, jointly and severally
indemnify the Buyers and their respective heirs, personal
representatives, successors and assigns ("Buyer Indemnified
Parties") and agree to defend and hold them harmless from and
against One Hundred (100%) percent of any and all claims,
damages, charges, liabilities, losses, judgments, fines,
penalties, amounts paid in settlement or satisfaction of claims,
costs and expenses (including reasonable attorneys' fees and
expenses) arising out of, relating to or accruing in respect of,
any breach or violation of any representations, warranties,
indemnities, covenants and obligations of Sellers set forth in
this Agreement and/or in that certain agreement dated as of
September 1, 1996 between Sellers, as sellers; Buyers, as buyers,
and Gramercy Realty Associates, a New York general partnership
("Gramercy") with respect to the sale of Seller's 50% aggregate
partnership interest in Gramercy (the "Gramercy Agreement"). The
indemnifications made by Sellers in the Gramercy Agreement, shall
be deemed to be part of Sellers' indemnity obligations under this
Agreement. Gramercy and its successors and assigns shall be
included as "Buyer Indemnified Parties". Buyers hereby jointly
and severally indemnify the Sellers and their respective heirs,
personal representatives, successors and assigns ("Seller
Indemnified Parties") and agree to defend and hold them harmless
from and against One Hundred (100%) percent of any and all
claims, damages, charges, liabilities, losses, judgments, fines,
penalties, amounts paid in settlement or satisfaction of claims,
costs and expenses (including reasonable attorneys' fees and
expenses) arising out of, relating to or accruing in respect of,
any breach or violation of any representations, warranties,
indemnities, covenants and obligations of Buyers set forth in
this Agreement and/or the Gramercy Agreement.
The indemnities provided in this Paragraph 7(b)
shall survive the Closing and shall include any claim for which
notice is provided to Sellers within four (4) years after the
Closing Date, except that with respect to tax, environmental and
other statutory claims, notification may be provided within such
additional period until the respective statutes of limitation
have run. In the event that Buyers elect to litigate or dispute
any claim or liability for which Sellers are required to
contribute under this Paragraph 7(b), Sellers may elect to pay
the applicable percentage of the claim or liability for which
they are responsible (50% or 100% as applicable) to Herrick,
Feinstein, counsel for Buyers, upon which Sellers shall have no
further obligation with respect to the specific claim or
liability for which Sellers have made such payment.
(c) (1) In the event that indemnifying parties
(Sellers or Buyers, as applicable, referred to herein as the
"Indemnifying Parties") shall have breached any of their
representations, warranties, covenants and obligations contained
in this Agreement or the Gramercy Agreement or other documents
required to be executed hereby or thereby, or the Indemnifying
Parties are obligated to make any indemnification as provided in
this Agreement or the Gramercy Agreement or other documents
required to be executed hereby or thereby, the Buyer Indemnified
Parties (if Sellers are the Indemnifying Parties), or Seller
Indemnified Parties (if Buyers are the Indemnifying Parties) (the
applicable indemnified parties referred to herein as the
"Indemnified Parties") shall notify the Indemnifying Parties in
writing of any such claim and the circumstances thereof.
(2) In cases where the Sellers are the
Indemnifying Parties, then the Buyer Indemnified Parties, after
delivery of such written notice and failure of Sellers to cure
the same to Buyers' reasonable satisfaction within 30 days of
such notice, and if any Buyer Indemnified Parties have suffered
damages or losses, they may offset their damages and losses
suffered thereby against payment of the Promissory Note delivered
hereunder and/or payment of any other amounts due to Sellers,
which action shall not be considered a default under this
Agreement or the Promissory Note. Such offset shall be applied
in the following manner: All subsequent payments of the
Promissory Note or other amounts due from Buyers to Sellers up to
the entire stated amount of the claim for which Sellers are
responsible (50% or 100% as applicable), shall be paid into
escrow with Herrick, Feinstein, Buyers' counsel, to be placed in
an interest-bearing escrow account pending resolution of the
claim (x) either by a written agreement signed by Sellers and
Buyers directing the disposition of such escrowed funds by
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ or (y) an order of a court of competent
jurisdiction directing the disposition of such escrowed funds by
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇. Upon resolution of the claim (unless
otherwise instructed by Sellers and Buyers or an order of a court
as set forth in the proceeding sentence) all amounts which had
been paid into escrow and which are necessary to satisfy the
portion of the claim as so resolved for which Sellers are
responsible (50% or 100% as applicable), shall be released for
payment thereof; then, all amounts necessary to satisfy the Buyer
Indemnified Parties' reasonable attorneys' fees and disbursements
and related out of pocket expenses in connection with such claim
(100% of such fees and expenses where Sellers are responsible for
100% of the claim and 50% of such fees and expenses where Sellers
are responsible for 50% of the claim), shall be released to the
applicable Buyer Indemnified Parties or their attorneys, as
applicable; and the balance, if any, shall be released to Sellers
(provided however, that if any other indemnification claims under
this Agreement or documents required to be executed hereby are
then pending or any other indemnification amounts are then owed
to the Buyer Indemnified Parties under this Agreement or
documents required to be executed hereby, such balance shall be
retained in escrow or released to the Buyer Indemnified Parties,
as applicable). In the event that the amounts being held in
escrow, as a result of such offset, are insufficient to cover the
indemnification required to be made by Sellers provided herein,
Sellers shall remain obligated to directly pay such deficiency to
the Buyer Indemnified Parties, as applicable; nothing in this
Section 7(c) shall be construed as a modification or reduction of
Seller's indemnification liability to the Buyer Indemnified
Parties, and the Buyer Indemnified Parties may at all times
proceed to exercise any other right or remedy to enforce such
indemnification against Sellers. If it is determined by a court
of competent jurisdiction that Buyers were not entitled to any
such offset, Buyers shall reimburse Sellers for their reasonable
attorney's fees, disbursements and out of pocket expenses in
connection with objecting to such offset claim.
(3) The Indemnifying Parties shall have the
first right and obligation to undertake and control the defense
of any third party claim for which any Indemnified Party seeks
indemnification, but the Indemnifying Party shall not settle any
such claim except upon a complete release of the Indemnified
Parties and their affiliates, or otherwise with the consent of
the Indemnified Parties, such consent not to be unreasonably
withheld. In the event the Indemnifying Parties fail to undertake
the defense (or to maintain such defense in good faith) of any
such claim, the Indemnified Parties may (but shall not be
obligated to) undertake and control the defense of such claim,
and retain their own counsel to conduct such defense, all of
which shall be at the expense of the Indemnifying Parties, and
the Indemnifying Parties shall remain responsible for payment of
all obligations to such third party claimant to the extent of
their indemnification obligation under this Section 7.
(4) Each of the Sellers hereby confirms and
agrees that they are and shall be jointly and severally
responsible for all of the representations, warranties, covenants
and indemnities and obligations of Sellers set forth in this
Agreement and documents required to be executed hereby (including
without limitation, the indemnification set forth in Section
7(b)). Each of the Buyers hereby confirms and agrees that they
are and shall be jointly and severally responsible for all of the
representations, warranties, covenants and indemnities and
obligations of Buyers set forth in this Agreement and documents
required to be executed hereby (including without limitation, the
indemnification set forth in Section 7(b)).
(5) Failure of an Indemnified Party to give
reasonably prompt notice of a claim for indemnification shall not
release, waive or otherwise affect the Indemnifying Parties'
obligations with respect thereto except to the extent that the
Indemnifying Parties can demonstrate actual loss and prejudice as
a result of such failure.
(d) (1) Effective on the Closing, and excepting
only the terms and conditions of this Agreement, the Separation
Agreement, the Gramercy Agreement and documents required to be
executed hereby and thereby and any payments to be made
thereunder, each of the Sellers, on behalf of themselves and
their heirs, personal representatives, successors, assigns and
affiliates, hereby releases, discharges and waives any and all
claims, counterclaims, actions or causes of action whether
asserted or unasserted and whether known or unknown which he, she
or they have possessed or may possess up until the time of
execution of this Agreement against, and acknowledges that they
have received all sums due from, any one or more of (i) Gramercy,
(ii) FLP, (iii) Firecom, (iv) Buyers or (v) the partners,
officers, directors, employees, agents or professional advisors
of Gramercy, FLP and Firecom and (vi) the respective heirs,
personal representatives, successors, assigns and affiliates of
the foregoing, and covenants not to ▇▇▇ any of them for any of
such claims.
(2) Effective on the Closing and excepting
only the terms and conditions of this Agreement, the Separation
Agreement, the Gramercy Agreement and documents required to be
executed hereby or thereby and any payments to be made
thereunder, each of the Buyers, Gramercy and FLP, on behalf of
themselves and their respective heirs, personal representatives,
successors, assigns and affiliates, hereby releases, discharges
and waives any and all claims, counterclaims, actions and causes
of action whether asserted or unasserted and whether known or
unknown which he, she or they may have possessed or may possess
up until the time of execution of this Agreement against Sellers
and their heirs, personal representatives, successors and assigns
and covenants not to ▇▇▇ any of them for any such claims.
(e) The parties hereto agree to make all
necessary elections under Internal Revenue Code so that income
allocation rules will be applied as if the taxable year of FLP in
which the Closing occurs consisted of two taxable years with the
first such taxable year ending on the Closing Date, and to
execute all necessary forms and consents. Before filing the
relevant tax returns, draft copies shall be sent to Sellers for
review by their accountants.
(f) Sellers shall bear all liability for stock
transfer and income taxes in connection with the sale of the
Transferred Interests herein. Each party hereto shall bear all
of its own legal, accounting and other professional fees in
connection with the transactions contemplated by this Agreement.
(g) Each Seller represents, warrants and
covenants to Buyers and FLP, that Sellers and their attorneys and
accountants have been given full access to the books, records,
accounts and facilities of FLP and have had the opportunity to
make such examination and investigation of the business, finances
and affairs of FLP and Firecom as they have deemed necessary or
desirable; that it is Sellers' desire to liquidate their interest
in FLP and Firecom immediately and to have the Buyers purchase
the Transferred Interests and it is Sellers' belief that the
purchase price for the Transferred Interests and terms and
conditions set forth herein are fair. Neither Sellers, Buyers,
FLP or Firecom make any representation or warranty as to the
value of the FLP Interests, the Firecom Shares, the Firecom
Preferred Stock, or as to Firecom.
(h) FLP NOTE DISTRIBUTIONS. Sellers and Buyers
acknowledge receipt on or about June 17, 1996 of distribution
from FLP of the final payments received by FLP from Firecom on
April 30, 1996 pursuant to the two promissory notes dated May 31,
1991 made by Firecom in favor of FLP (the "Firecom Notes"), such
that Sellers received from FLP the aggregate of $25,000 (50% of
such distribution from FLP) and Buyers received from FLP the
aggregate of $25,000 (50% of such distribution from FLP). The
parties hereto acknowledge that there shall be no further
payments or distributions with respect to the Firecom Notes. PM
represents that there are no other payments due from Firecom to
FLP (except with respect to the Firecom Preferred Stock).
(i) REIMBURSEMENT OF EXPENSES. At the Closing,
the Sellers shall reimburse Multiplex for $2,120.62 of expenses
incurred in connection with the settled litigation of King,
Firesafe et al. v. Multiplex.
(j) CONTINUATION OF PARTNERSHIP. Sellers confirm
and agree that notwithstanding the sale and transfer of the
Transferred Interests and the withdrawal of Sellers as partners
of FLP, Sellers shall have no objection to having FLP continue
its business with PM as general partner thereof and FLP shall
retain all right, title and interest in and to the Firecom
Preferred Stock.
(k) RELEASE OF SELLERS' INTEREST IN UNDERLYING
ASSETS. Sellers hereby confirm and agree that, effective on the
Closing Date, they shall have no right, title or interest in,
beneficially or of record, and hereby release any Claim on, the
assets or business of FLP.
(l) CONSENT TO FLP TRANSFER. PM, as general
partner and on behalf of FLP, hereby consents to the sale and
transfer of the FLP Interests from Sellers to Buyers.
8. AMENDMENTS TO SEPARATION AGREEMENT AND
CONSULTING AGREEMENT
(a) The parties hereto agree that the Separation
Agreement and the Consulting Agreement shall be amended as set
forth in this Section 8(a):
(1) The opening paragraph of Section 9 of
the Separation Agreement shall be deleted as of the Closing Date
of this Agreement.
(2) The fifth sentence of Section 9(a) of
the Separation Agreement is amended to read in its entirety as
follows: "Sellers shall remain responsible for 50% of all other
liabilities and obligations of Gramercy (other than in its
capacity as general partner of FLP), whether accruing prior to or
on the Closing Date [September 30, 1995], which shall be deemed
to be part of Seller's indemnity obligations under Section 7 of
this Agreement.
(3) The application of Section 9(c)(1),
subsections (i),(ii) and (iii), of the Separation Agreement
relating to the Firecom Shares (defined as the Controlled Shares
in the Separation Agreement) as owned by Sellers and the proxy
therefor granted to Buyers, and of Section 9(c)(2) relating to
distributions from FLP, shall be stricken as of the Closing Date
of this Agreement.
(4) Section 9(d) of the Separation Agreement
(relating to the Firecom Preferred Stock) shall be deleted in its
entirety.
(5) Section 9(e), subsections (1), (3), (4),
(5) and(6) of the Separation Agreement (relating to disposition
of the Gramercy Property) shall be deleted in their entirety.
Buyers hereby release Sellers from any obligations of Sellers to
reimburse Buyers under Section 9(e)(5) of the Separation
Agreement.
(6) Section 9(f) of the Separation Agreement
(relating to the dissolution of Gramercy) shall be deleted in its
entirety.
(7) Section 10(q) of the Separation
Agreement shall be deleted in its entirety and the Certificate of
Discontinuance of Gramercy previously executed and held in escrow
shall be deemed null and void and the escrow agent named therein
shall be authorized and directed to destroy the same.
(8) The provisions of Section 8(e) of the
Separation Agreement and Section 5(e) of the Consulting
Agreement, referring to family members of Sellers and H & J
Technical Services, Inc. ("H & J"), shall not be applicable to
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ or Apex Electrical Contractors, Inc.
(hereinafter referred to collectively as "Benedek") or any other
firm or corporation controlled by Benedek so long as Sellers
and/or H & J shall have no financial interest with Benedek's
business, direct or indirect, and any and all existing references
to Benedek in Section 8(e) of the Separation Agreement and
Section 5(e) of the Consulting Agreement shall be stricken,
provided that the following restrictions shall apply to Benedek
in the "Restricted Buildings" (as defined in the Separation
Agreement), for the remainder of the period therein specified,
and any violations of such restrictions shall be deemed a
violation by Sellers of Section 8(e) of the Separation Agreement
and Section 5(e) of the Consulting Agreement: Benedek shall not,
directly or indirectly, submit any bid, proposal, contract,
offer, or tender for, or engage in or perform the supply, sale,
leasing, servicing or maintenance of, any fire alarm system or
software, or any replacement, addition, modification, upgrade,
enhancement or expansion thereof, or any communications or
security system if it is a significant integral part of a fire
alarm system in any Restricted Building, to or through or for any
owner, operator, management company, landlord, tenant or other
contractor, or otherwise, whether for its own account or on
behalf of, or in conjunction with, any other contractor or
supplier (except Multiplex), whether as a prime contractor,
subcontractor for fire alarm installation work, or in any other
capacity, provided however that if the scope of any general work
not restricted hereunder includes fire alarm work, then in
performance of such general work for an owner, tenant, general
contractor or other contractor or otherwise, Benedek will
purchase any fire alarm equipment required in any modification of
the fire alarm system from Multiplex at fair market value or may
install equipment provided by the owner or such other party (but
Benedek shall not induce the owner or such other party to provide
or procure its own equipment by changing the electrical
contractor specifications or otherwise).
Notwithstanding the foregoing:
(i) In the buildings at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and 821
Broadway, if a fire alarm system is replaced by a supplier other
than Multiplex or a system is serviced by anyone other than
Multiplex, Benedek shall be permitted to perform additions to
such system for the new supplier or servicer (but shall not be
permitted to bid, propose or supply such new system); and
(ii) In the building at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, if
Multiplex does not bid on a system replacement, or if Multiplex
does bid but is not awarded the job, Benedek shall not be
restricted from performing electrical work for the system
replacement implemented by a supplier other than Multiplex.
(9) Schedule 6 of the Separation Agreement
and the Consulting Agreement shall be amended by changing the
listing of "Dow ▇▇▇▇▇" to "Dow ▇▇▇▇▇ at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇" and
the listing of "Nomura" to Nomura at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇" and by
eliminating as to Benedek, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ from the list of
Restricted Buildings.
(10) Section 7(c)(1) of the Separation
Agreement shall be amended by adding to the end thereof,
"Seller's indemnity obligation under this Section 7(c)(1) shall
extend to 50% of all liabilities and expenses (including
attorneys fees and disbursements) relating to the two (2)
litigations.existing on the Closing Date, ▇▇▇▇▇▇/▇▇▇▇▇▇▇/ Helmsly
et al. v. Multiplex and ▇▇▇▇▇ ▇. Multiplex.
(b) Except as expressly set forth in Section 8(a)
above, (i) the Separation Agreement and the Consulting Agreement
remain unchanged and in full force and effect and (ii) none of
the provisions of this Agreement shall, or shall be construed as,
releasing, modifying, waiving, or reducing any of the
representations, warranties, covenants and obligations of any of
the parties to the Separation Agreement or the Consulting
Agreement.
9. CONDITIONS TO CLOSING. The obligations of the
parties hereto to consummate the purchase and sale of the
Transferred Interests and the other transactions provided for
herein shall be subject to satisfaction, at or prior to the
Closing, of the following closing conditions and closing
deliveries (which the parties hereto agree to take all necessary
steps to accomplish):
(a) The Buyers shall deliver to Sellers the cash
payment of $200,580.85 provided for in Paragraph 3(a) of this
Agreement, credited against the Purchase Price for the
Transferred Interests.
(b) Buyers shall execute and deliver to Sellers
the Promissory Note for the Deferred Purchase Price.
(c) Sellers shall deliver to Buyers any of FLP's
bank checkbooks, bank account records, investment or money market
account checkbooks or records, any of FLP's accounting and tax
records, filings and tax returns (Sellers may retain copies of
tax records, filings and returns solely for Sellers' own use in
connection with their personal taxes) and any other books,
records, files, contracts, reports, and documentation pertaining
to FLP in the possession of Sellers.
(d) Sellers shall deliver to Multiplex the
reimbursement of expenses for the Firesafe litigation pursuant to
Section 7(i).
(e) Sellers and Buyers shall have executed and
delivered a separate assignment of the FLP Interest.
(f) Sellers shall deliver to Buyers stock
certificates for the Firecom Shares, together with stock powers
with respect to such shares endorsed to Buyers; if new
certificates in the name of Buyers are not available at the
Closing, documentation of appropriate instructions to Firecom's
transfer agent requesting the issuance of such shares will be
provided.
(g) There shall be no litigation or governmental
proceedings pending against the Sellers, Buyers, FLP or Firecom
seeking to restrain the transactions provided for under this
Agreement.
(h) Buyers shall have received satisfactory lien
searches recording no liens or encumbrances against FLP or
Sellers, and Buyers shall have received satisfactory
documentation of the current partnership certificate of FLP.
(i) All representations, warranties and covenants
of the parties hereto shall be true and correct as of the Closing
Date and all obligations to be performed by the parties on or
prior to the Closing Date shall have been performed, and the
parties shall at the Closing exchange certifications thereof.
(j) The Sellers must sell all of the Transferred
Interests to Buyers simultaneously.
10. GENERAL PROVISIONS.
(a) If, at any time after the date hereof, either
party shall consider or be advised that any further assignments,
conveyances, certificates, filings, instruments or documents or
any other things are necessary or desirable to vest, perfect or
confirm in Buyers title to the Transferred Interests, or to
consummate any of the transactions contemplated by this
Agreement, the other party shall, upon request, promptly execute
and deliver all such proper instruments and do all things
reasonably necessary and proper to vest, perfect or confirm title
in Buyers and to otherwise carry out the purposes of this
Agreement.
(b) All representations, warranties and
agreements made by the parties hereto shall survive the execution
and delivery of this Agreement and the Closing Date. No
representations or warranties are made by any party hereto except
as expressly set forth in this Agreement or in documents required
to be delivered hereunder.
(c) This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the parties hereto and
their respective personal representatives, heirs, successors and
permitted assigns; PROVIDED, HOWEVER, that this Agreement cannot
be assigned or amended without the express written consent of
each party hereto. No waiver of any breach of any of the terms
herein shall be effective unless made in writing, signed by the
party against whom enforcement of the waiver is sought, and no
such waiver shall be construed as a waiver of any subsequent
breach of that term or of any other term of the same or different
nature.
(d) Any notice, request, demand or consent
required or permitted to be given hereunder shall be given in
writing to the party and his (its) attorney by:
(i) registered mail, postage prepaid,
return receipt requested; or
(ii) in lieu thereof, by prepaid courier
service (Federal Express), etc., guaranteeing overnight delivery,
provided that the courier service produces a receipt evidencing
delivery of the notice to the party to be notified; and
(iii) in addition thereto, regular mail
addressed to the party for whom intended at the following
addresses with a copy to the respective attorneys:
For HS or JS:
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
- and -
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Carb, Luria, Glassner, ▇▇▇▇ x ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For PM or CM:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
-and-
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
For FLP or Multiplex:
c/o Multiplex Electrical Services, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Secretary/Treasurer
-and-
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(e) This Agreement sets forth the entire
understanding of the parties with respect to the subject matter
hereof.
(f) This Agreement may be executed in counterpart
copies and each of which shall be an original but all of which
shall constitute a single instrument.
(g) The provisions and covenants set forth in
this Agreement are for the benefit of the parties to this
Agreement(and the Indemnified Parties and releasees set forth in
Section 7) and not for the benefit of any creditor or other
person, and no creditor or other person shall have any right to
enforce the provisions and covenants against any party hereto.
(h) This Agreement shall be construed and
governed by the laws of the State of New York. Each party hereto
for himself, itself and his or its heirs, personal
representatives, successors and assigns, hereby consents to
personal jurisdiction over him, it and them in the courts of the
State of New York and of any federal court located in such state
in connection with any action or proceeding arising out of or
related to this Agreement. Each party hereto for himself, itself
and his or its heirs, personal representatives, successors and
assigns agrees that service of process upon it or them may be
made in any manner permitted by the laws of the State of New
York.
(i) If any provision of this Agreement shall be
invalid or unenforceable, in whole or in part, or as to any
jurisdiction, such provision shall be deemed to be modified or
restricted to the extent and in the manner necessary to render
the same valid and enforceable, or shall be deemed excised from
this Agreement, as the case may require, and this Agreement shall
be construed and enforced to the maximum extent permitted by law
as if such provision had been originally incorporated herein as
so modified or restricted, or as if such provision had not been
originally incorporated herein, as the case may be.
11. CLOSING. The closing of the transactions
contemplated herein (the "Closing") shall be deemed to have
occurred effective on the close of business, October 25, 1996,
which shall be the "Closing Date for all purposes of this
Agreement. The signing of this Agreement and all documentation
pursuant hereto shall take place in the office of Buyers'
attorneys, Herrick, Feinstein, located at ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
IN WITNESS WHEREOF the undersigned have executed and
delivered this Agreement on the date first written above.
/S/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MULTIPLEX ELECTRICAL SERVICES, INC.
By /S/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇,
Secretary/Treasurer
FIRECOM HOLDINGS, LP
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇▇, General Partner
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 25th day of October, 1996, before me personally came
▇▇▇▇▇ ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did
depose and say that she resides at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; that she is the Secretary/Treasurer of
MULTIPLEX ELECTRICAL SERVICES, INC., a corporation described in
and which executed the foregoing instrument; that she executed
the foregoing instrument on behalf of said Corporation and by
order of its Board of Directors.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 25th day of October, 1996, before me personally came
▇▇▇▇ ▇▇▇▇▇▇, to me known to be the individual described in and
who executed the foregoing instrument, and acknowledged that he
executed the same.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 25th day of October, 1996, before me personally came
▇▇▇▇▇ ▇▇▇▇▇▇, to me known to be the individual described in and
who executed the foregoing instrument, and acknowledged that she
executed the same.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
: ss.:
COUNTY OF NASSAU )
On the 24th day of October, 1996, before me personally came
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to me known to be the individual described in and
who executed the foregoing instrument, and acknowledged that he
executed the same.
/S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
: ss.:
COUNTY OF NASSAU )
On the 24th day of October, 1996, before me personally came
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to me known to be the individual described in and
who executed the foregoing instrument, and acknowledged that she
executed the same.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
: ss.:
COUNTY OF NASSAU )
On the 25th day of October, 1996, before me personally came
▇▇▇▇ ▇▇▇▇▇▇, to me known, who, being by me duly sworn, did depose
and say that he resides at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇; that he is the General Partner of FIRECOM HOLDINGS
LP, a limited partnership described in and which executed the
foregoing instrument; that he executed the foregoing instrument
on behalf of said partnership.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
NOTARY PUBLIC