STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated September 27,
2001, is between Ultrak, Inc., a Delaware corporation (the "Company"), and
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RECITALS. The Company is a public company in the United States with
certain of its Common Stock (the "Stock") registered with the United States
Securities and Exchange Commission (the "SEC") and listed on the NASDAQ National
Market System. At the closing of the transactions contemplated by this Agreement
(the "Closing"), the Company desires to sell to Purchaser, and Purchaser desires
to acquire from the Company, 2,337,700 authorized but unissued shares of the
Stock (the "Purchased Shares") in exchange for $4,441,630.00 (the "Purchase
Price"). Purchaser understands that the Purchased Shares have not been
registered with the SEC and are not freely transferable.
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements contained herein, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
hereby covenant and agree as follows:
1. Purchase. Subject to the terms hereof, on the Closing Date (as
hereinafter defined), the Company shall sell and deliver to Purchaser, and
Purchaser agrees to purchase from the Company, the Purchased Shares.
2. Purchase Price. As consideration for the Purchased Shares,
Purchaser shall pay the Company the Purchase Price at the Closing in
immediately available funds.
3. Closing. The Closing shall be held at the offices of the Company
in Lewisville, Texas, at 10:00 a.m., local time, on the date hereof (the
"Closing Date"). At the Closing, each party shall execute and deliver each
document required to consummate this Agreement. The Company shall deliver a
certificate or certificates representing the Purchased Shares.
4. Additional Shares. The Company, at the Company's option, may
elect, for thirty (30) days from the date hereof, to obtain all approvals
necessary (including NASDAQ approval) to sell Purchaser up to an additional
293,879 shares of the Stock (the "Additional Shares") at a price per
Additional Share of $1.90 payable in cash. All of Purchaser's representations
herein shall apply to both the Purchased Shares and any Additional Shares.
5. Representations of the Company. The Company represents and
warrants to Purchaser that:
(a) The Company is a corporation duly organized, validly
existing, and in good standing under Delaware law. The Company has full
corporate power and authority to perform this Agreement.
(b) The execution, delivery, and performance by the Company of
this Agreement has been duly authorized and approved by all necessary
corporate action on the part of the Company. This Agreement has been duly
executed and delivered by the Company, and is the legal, valid, and binding
obligation of the Company, and is enforceable against the Company in
accordance with its terms, subject to laws affecting generally the enforcement
of creditors' rights and to general principles of equity.
(c) The execution and deliver of this Agreement, and the
consummation of the transactions contemplated by this Agreement, will not
result in a breach or violation of, or constitute a
default under (i) the Certificate of Incorporation or Bylaws of the Company or
(ii) any agreement or instrument to which the Company is a party or by which
the Company is bound.
(d) Other than filings with the SEC and NASDAQ and the consent of
the Company's lenders, no authorization, consent, approval, permit, or license
of, or filing with, any governmental or public body or authority or any other
person or entity is required to authorize, or is required in connection with
the Company's execution, delivery, and performance of this Agreement.
(e) The Company has furnished to Purchaser (i) the Company's
annual report on Form 10-K for the year ended December 31, 2000, (ii) the
Company's annual report to stockholders for the year ended December 31, 2000,
(iii) the Company's definitive proxy statement for the June 1, 2001 annual
meeting of the Company's stockholders, and (iv) the Company's Form 10-Q for
the quarters ended March 31, 2001 and June 30, 2001 (collectively, the "SEC
Filings"). The Company represents that all of the SEC Filings were timely
filed and in accordance with the SEC's rules and regulations.
6. Representations of Purchaser. Purchaser hereby represents and warrants
to the Company as follows:
(a) Purchaser is an individual and in good standing under the
laws of the Switzerland. Purchaser has all requisite power and authority to
perform this Agreement.
(b) The execution, delivery, and performance by Purchaser of this
Agreement has been duly authorized and approved by all necessary action on the
part of Purchaser. This Agreement has been duly executed and delivered by
Purchaser, and is the legal, valid, and binding obligation of Purchaser, and
is enforceable against Purchaser in accordance with its terms, subject to laws
affecting generally the enforcement of creditors' rights and to general
principles of equity.
(c) The execution and delivery of this Agreement, and the
consummation of the transactions contemplated by this Agreement, will not
result in a breach or violation of or constitute a default under or pursuant
to (i) the [charter documents] [formation documents] of Purchaser or (ii) any
agreement or instrument to which Purchaser is a party or by which Purchaser is
bound.
(d) Other than a filing with the SEC following the Closing, no
authorization, consent, approval, permit, or license of, or filing with, any
governmental or public body or authority or any other person or entity is
required to authorize, or is required in connection with Purchaser's
execution, delivery, and performance of this Agreement.
(e) There are no claims for any broker or similar fees in
connection with the transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of Purchaser or Purchaser's
affiliates.
(f) Purchaser hereby represents and warrants to, and covenants
with, the Company that:
(i) Purchaser has reviewed the SEC Filings. The Company has
given Purchaser the opportunity to review any of the Company's other filings
with the SEC.
(ii) In connection with the issuance to Purchaser of the
Purchased Shares, Purchaser hereby acknowledges and understands that the
Purchased Shares have not been registered under the United States
Securities Act of 1933, as amended (the "Federal Act"), the Texas
Securities Act, as amended (the "Texas Act"), or any securities acts of
any other state or country (the "Other Acts"), that the Purchased Shares
are being issued to Purchaser in reliance upon one or more exemptions
from registration contained in the Federal Act, the Texas Act, and
the Other Acts, and that the Company's reliance on such exemptions is
based in part upon the representations made herein by Purchaser.
(iii) Purchaser hereby represents to the Company that
Purchaser is acquiring the Purchased Shares solely for Purchaser's own
account for investment and not with a view to, or for offer or sale in
connection with, the unregistered "distribution" of all or any part of
the Purchased Shares within the meaning of the Federal Act. Purchaser
represents that he has no current intention to sell, convey, dispose of,
or otherwise distribute any interest in or risk related to the Purchased
Shares. Purchaser acknowledges and agrees that this transaction has not
been reviewed or approved by the SEC or any other governmental agency or
department.
(iv) Purchaser hereby acknowledges that the provisions of
Rule 144 promulgated under the Federal Act ("Rule 144") are not now
available for the public resale of the Purchased Shares and that
Purchaser has no right to have the Purchased Shares registered under the
Federal Act to permit them to be resold. Purchaser also hereby
acknowledges that, as a result of the foregoing, Purchaser must hold the
Purchased Shares for at least one (1) year from issuance (unless
subsequently registered prior to that time) assuming the entire risk of
investment therein for that period of time, until and unless (A) the
Purchased Shares are subsequently registered under the Federal Act, (B)
the Purchased Shares may be sold under Rule 144, or (C) an exemption from
registration is available at the time of resale of the Purchased Shares.
Purchaser is aware of the provisions of Rule 144 which permits limited
resale of shares purchased in a private placement subject to the
satisfaction of certain conditions, including, among other things, the
existence of a public market for such shares, the availability of certain
current public information about the issuer of such shares, the resale
occurring not less than one year after acquisition, the sale being
through a "broker's transaction" or in transactions directly with a
"market maker" (as provided by Rule 144(f)) and the number of shares
being sold during any three-month period not exceeding specified
limitations (unless the sale is within the requirements of Rule 144(k)).
(v) Purchaser hereby represents to the Company that Purchaser
has such knowledge and experience in financial and business matters that
Purchaser is capable of evaluating the merits and risks of investing in
the Purchased Shares and that Purchaser is able to bear the economic
risk, including a total loss, of such an investment. Purchaser
understands and has fully considered for purposes of this investment the
risks of this investment and that, because of the restrictions on
transfer, it may not be possible for Purchaser to liquidate Purchaser's
investment in the Purchased Shares in the case of emergency.
(vi) Purchaser acknowledges and agrees that Purchaser is
acquiring the Purchased Shares without being offered or furnished any
offering literature or prospectus other than the SEC Filings. Purchaser
hereby acknowledges that Purchaser has had access to all information,
which Purchaser considers necessary or advisable to enable Purchaser to
make an informed decision concerning the acquisition of the Purchased
Shares. Purchaser is acquiring the Purchased Shares based solely on
Purchaser's review of the SEC Filings and Purchaser's investigation of,
and satisfaction with, the Company's current and anticipated financial
condition and assets and not based on any oral representations of any
individual. Purchaser confirms that Purchaser and Purchaser's
representatives and advisors have been given the opportunity to ask
questions of, and to receive answers from, persons acting on behalf of
the Company concerning the business and prospects of the Company and to
obtain any additional information, to the extent such persons possess
such information or can acquire it without unreasonable effort or expense
and without breach of confidentiality obligations, necessary to verify
the accuracy of the information set forth in the SEC Filings.
(vii) Purchaser understands that Purchaser must not, and
Purchaser agrees that Purchaser will not, sell, transfer, assign,
encumber, or otherwise dispose of the Purchased Shares or any interest
therein, unless prior thereto Purchaser has delivered to the Company, and
the Company has accepted as satisfactory, an opinion of experienced and
competent counsel to the effect that such proposed sale, transfer,
assignment, encumbrance, or disposition will not constitute or result in
any violation of the Federal Act, the Texas Act, the Other Acts, or any
other applicable statute relating to the disposition of securities.
(viii) Purchaser understands and agrees that there may be
typed or otherwise printed on the certificates representing the Purchased
Shares, and any other securities issued in respect of the Purchased
Shares upon any stock split, stock dividend, recapitalization, merger,
consolidation, or similar event, a legend referring to the foregoing
restriction upon disposition, such legend to be substantially in the
following form (in addition to any other legends required by applicable
law):
THE PURCHASED SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") OR UNDER ANY APPLICABLE STATE LAW,
AND SUCH PURCHASED SHARES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR
OTHERWISE DISPOSED OF UNLESS A REGISTRATION STATEMENT UNDER THE ACT
WITH RESPECT TO SUCH DISPOSITION SHALL THEN BE IN EFFECT OR UNLESS THE
PERSON REQUESTING THE TRANSFER OF SUCH PURCHASED SHARES SHALL FURNISH,
WITH RESPECT TO SUCH TRANSFER, AN OPINION OP COUNSEL (BOTH COUNSEL AND
OPINION TO BE SATISFACTORY TO THE CORPORATION) TO THE EFFECT THAT SUCH
SALE, TRANSFER, ASSIGNMENT, OR DISPOSITION WILL NOT INVOLVE ANY
VIOLATION OF THE ACT OR ANY APPLICABLE STATE LAW.
(ix) Purchaser also understands that the Company's Transfer
Agent, the keeper of the Company's stock transfer books and records, has
been instructed not to transfer the Purchased Shares except upon the
Company's instructions for one (1) year from issuance (and transfers
during the second year after issuance must be in accordance with Rule
144) and that the Company will take such other steps as the Company deems
necessary to prevent the transfer of the Purchased Shares in the absence
of compliance with the foregoing restrictions.
(x) Purchaser represents to the Company that Purchaser is an
"accredited investor" under Rule 501 of Regulation D of the Federal Act,
and that the sale of the Purchased Shares to Purchaser is predicated, in
part, on Regulation D, which addresses the limited sale of unregistered
securities.
(xi) Purchaser acknowledges that Purchaser has received
certain financial projections for the Company (the "Financial
Projections"). Purchaser understands that there is no guarantee or
assurance that the Company's operations will meet the Financial
Projections. Purchaser further understands that the Financial Projections
are subject to a number of factors, most of which are outside the
Company's control. The Financial Projections involve risks and
uncertainties and actual results may differ materially from the Financial
Projections, Investor acknowledges that the Financial Projections should
not be relied upon as indicative of the Company's future performance.
7. Notices. All notices and communications under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) sent by third party courier or overnight delivery service, or
(c) sent by telecopy (with receipt confirmed), to parties at the address set
forth opposite their signature. Any such notice shall be deemed to have been
given and received on (i) the
date so delivered, if delivered personally, (ii) the next business day after
delivery to such third party courier or overnight delivery service, if sent by
third party courier or overnight delivery service for next day delivery, or
(iii) the date of the confirmation, if sent by telecopy.
8. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the parties relating to the subject matter hereof and
supersedes all prior agreements, communications, and arrangements, whether
oral, written, or inferred, among the parties relating to the subject matter
hereof. This Agreement may not be modified, in whole, or. in part, except by a
written instrument executed by each party hereto.
9. Governing Law. This Agreement shall be governed by Texas law without
regard to the conflict of law principles thereof.
10. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under any current or future law, such
provision shall be fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision never
comprised a part hereof, and the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance herefrom. Furthermore,
in lieu of such illegal, invalid, or unenforceable provision, there shall be
added automatically as part of this Agreement, a provision as similar in its
terms to such illegal, invalid, or unenforceable provision as may be possible
and be legal, valid, and enforceable.
11. Miscellaneous. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and taxed signature
pages to this Agreement shall be fully binding and enforceable without
requiring the manually executed signature page(s) to this Agreement. Time is
of the essence with respect to the time periods set forth or referred to in
this Agreement. Except as otherwise set forth herein, all fees, costs, and
expenses incurred in connection with the Transactions shall be paid by the
party incurring such fees, costs, and expenses. No party to this Agreement may
sell, transfer, assign, pledge, or hypothecate its rights, interests, or
obligations under this Agreement without the consent of the other party. This
Agreement shall inure to the benefit of, be binding upon, and be enforceable
by the parties hereto and their respective successors and permitted assigns.
The waiver of any breach of any term or condition of this Agreement shall not
be deemed to constitute the waiver of any other breach of the same or any
other term or condition.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first written above.
ULTRAK, INC.
Address:
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Telecopy No._________________
Attn:________________________
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Its: Vice President - General Counsel
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Address
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Telecopy No._____________________
Attn:____________________________
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Its:
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