EXHIBIT 10.16
RIGHT OF FIRST REFUSAL AGREEMENT
THIS RIGHT OF FIRST REFUSAL AGREEMENT ("Agreement"), is made this 26th
day of September, 2002, by and between KC Acquisition Corporation, a New Jersey
corporation, and Criticom IDC Corporation, a New Jersey corporation (hereinafter
each individually a "Company" and collectively the "Companies"), and Royal
Thoughts, LLC, a Minnesota limited liability company ("Royal").
RECITALS:
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WHEREAS, Royal is in the business of, among other things, development
of technology relating to (i) the alarm monitoring industry and (ii) other items
of property that emit or could emit signals to monitor for sale, license and
joint venture; and
WHEREAS, the Companies are engaged in the business of monitoring
standard burglar and fire alarm signals and other signals and devices; and
WHEREAS, in connection with that certain merger transaction of even
date herewith by and among Criticom IDC Corporation and Criticom International
Corporation, the Companies have requested from Royal among other agreements a
right of first refusal agreement to monitor signals that Royal is requested or
given the opportunity to monitor;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
Section 1. Right of First Refusal. Royal hereby grants to the
Companies the first right to monitor Traditional Alarm Industry Signals and New
Monitoring Signals (each as defined in that certain Restrictive Covenant of even
date herewith executed by Royal in favor of the Companies) (individually,
collectively and severally hereinafter a "Signal") that Royal itself has the
opportunity to monitor or to arrange for monitoring. When and as Royal has the
opportunity to monitor or to arrange for monitoring of any Signal, Royal shall
notify in writing and give to the Companies a monitoring terms and conditions
agreement along with a specification and price sheet for the particular Signal
(collectively and severally, the "Spec Sheet"). The Spec Sheet shall be
identical to that which is to be provided to any third party provider. The
Companies and either of them shall, within thirty (30) calendar days after the
date Royal delivers the Spec Sheet to the Companies, accept or reject in writing
the opportunity to monitor the Signal on the terms offered, failing which the
Companies shall be deemed to have rejected the opportunity to monitor the Signal
and Royal may itself monitor the Signal or grant to another person or company
such opportunity, however any such monitoring shall be solely on the identical
monitoring terms and conditions agreement and pursuant to the identical
specifications and pricing which were presented to the Companies in the Spec
Sheet.
The Companies agree that their acceptance of a Spec Sheet shall, to
the extent contained
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within the Spec Sheet, be deemed a representation by the Companies, or either of
them that accepts same, that it has the requisite skill, competence and
proficiency in monitoring the Signal, failing which in a material respect Royal
may to the extent set forth in the Spec Sheet at any time on ten (10) days
advance written notice terminate the right of the Companies to monitor any
particular Signal(s) at issue. Upon such termination, Royal may in that event
itself monitor such Signal or grant to another person or company such right, all
on the terms in the applicable Spec Sheet. If the Companies or either of them do
not elect to accept the Spec Sheet offered by Royal as detailed above, and if
the same is not bound and undertaken upon the identical Spec Sheet terms and
conditions within one hundred and twenty (120) days from the expiration of the
Companies' right of first refusal as hereinbefore provided, or should the terms
of the monitoring of the Signal or of the Spec Sheet change in any material
respect, then the same opportunity to monitor the Signal and rights of first
refusal of the Companies herein shall again apply as if it was never before
offered to the Companies and the above procedure shall be observed once again.
Section 2. Term of Agreement. This Agreement shall commence of the
date first set forth above and continue for a period of ten (10) years (the
"Term").
Section 3. Termination. This Agreement shall terminate upon the
expiration of the Term. Notwithstanding any term, condition or provision of this
Agreement to the contrary, this Agreement shall terminate upon one or more of
the following events:
(a) By mutual written agreement of the parties;
(b) At the option of the non-breaching party, in the event that the
other party hereto breaches any term, condition or provision of this Agreement
to be performed or observed by such party (and in the event of a breach if
limited to performance of a service for a customer only the agreement as
relating to that service shall be terminable) which is not cured within thirty
(30) days after such party receives written notice from the other party hereto
of such a breach or such longer period reasonably required in order to cure such
breach provided the breaching party diligently pursues such cure to completion,
but in no event shall such period of time be less than the period of time which
is given to Royal by the Royal customer;
(c) At the option of one party, upon any bankruptcy, reorganization,
debt arrangement or other similar proceeding being instituted by or against the
other party hereto, which is not dismissed or stayed within sixty (60) days
thereof;
(d) At the option of one party hereto, if the other party hereto
becomes insolvent or shall apply for, shall consent to, or shall acquiesce in
the appointment of a custodian, trustee or receiver of it or for a substantial
part of its property or, in the absence of such application, consent or
acquiescence, a custodian, trustee or receiver shall so be appointed, which
appointment shall not be dismissed or stayed within sixty (60) days therefrom;
or
(e) At the option of one party hereto, upon any execution or
attachment whereby a substantial part of the property of the other party hereto
is taken or attempted to be taken, which
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execution or attachment is not dismissed or stayed within sixty (60) days
therefrom.
Section 4. Indemnification.
(a) Each of the Companies agree to indemnify and hold harmless Royal
and its respective directors, officers, agents, employees and assigns, or any of
them, from and against any and all liability, damages, costs, losses, claims,
demands, fees and expenses (including reasonably attorneys' fees and expenses)
(individually and collectively as the "Adverse Consequence"), arising out of or
related to (i) monitoring of any Signals by that Company, and (ii) breach of,
or failure to perform, any of its representations, warranties, covenants,
commitments, agreements or obligations under this Agreement by that Company. The
obligation of the Companies to indemnify Royal shall survive indefinitely the
termination of this Agreement.
(b) Royal agrees to indemnify and hold harmless the Companies and each
of them and their respective directors, officers, agents, employees and assigns,
or any of them, from and against any and all liability, damages, costs, losses,
claims, demands, fees and expenses (including reasonably attorneys' fees and
expenses) (individually and collectively as the "Adverse Consequence"), arising
out of or related to (i) any of Royal's monitoring of any Signals and (ii) any
of Royal's breach of, or failure to perform, any of its representations,
warranties, covenants, commitments, agreements or obligations under this
Agreement. The obligation of Royal to indemnify the Companies shall survive
indefinitely the termination of this Agreement.
Section 5. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(b) Waiver, Modification or Amendment. No waiver, modification or
amendment of any term, condition or provision of this Agreement shall be valid
or of any effect unless made in writing, signed by the party sought to be bound,
and specifying with particularity the nature and extent of such waiver,
modification or amendment.
(c) Assignment. It is expressly understood and agreed that the parties
may not assign their rights, remedies or obligations, in whole or in part, under
this Agreement without the prior written consent of the other party, except to a
parent or affiliated entity. No such assignment shall relieve the original party
herein from meeting all its obligations hereunder.
(d) Binding Nature. This Agreement is and shall be binding upon the
parties hereto and their respective successors, heirs, executors, administrators
or other legal representatives and permitted assigns, and shall inure to the
benefit of the parties and their respective successors and permitted assigns.
(e) Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Minnesota, without regard to conflicts
of laws provisions.
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(f) Effect of Headings. The subject headings of the paragraphs of this
Agreement are included for purposes of convenience only and shall not effect the
construction or interpretation of any of its provisions.
(g) Severability. If any term, condition or provision of this
Agreement is construed or deemed to be invalid or unenforceable for any reason,
the other terms, conditions and provisions hereof shall continue to be effective
and binding and this Agreement shall be construed as if the invalid or
unenforceable term, condition or provision were omitted, provided that the
parties hereto (and their successor's from whatever nature) agree in good faith
to negotiate a substitute term, condition or provision for any such invalid or
unenforceable term, condition or provision.
(h) Ambiguity. The parties hereto agree that if any term, condition or
provision of this Agreement is deemed or construed to be ambiguous, such
ambiguity shall not be construed against the drafting party of this Agreement.
(i) Remedies. No remedy for the enforcement of the terms and
conditions of this Agreement is intended to be exclusive and each shall be
cumulative and shall be in addition to every other remedy, and the election of
any one or more remedies shall not constitute a waiver of any other remedy or an
election of remedies. The terms, conditions and provisions regarding the
remedies of the parties hereto shall survive the termination of this Agreement.
Without limiting the generality of the immediately preceding sentence, each
party shall have all legal rights and remedies for the enforcement of the terms,
conditions and provisions of this Agreement, including, without limitation, the
right to pursue and collect consequential damages which may arise from a party's
breach of any term, condition or provision of this Agreement. The terms,
conditions and provisions regarding the remedies of the parties hereto shall
survive the termination of this Agreement.
(j) Survival of Representations and Warranties. The representations
and warranties of the parties set forth in Section 1 of this Agreement shall
survive indefinitely the execution and termination of this Agreement.
(k) Force Majeure. Each party is relieved and excused without damages
accruing from the performance of its obligations and duties under this Agreement
if such performance is prevented by any cause beyond the control of such a
party, including, without limitation, illegality of performance, acts of god,
acts of war, labor strikes, transportation strikes and any material or product
shortages; it being the understanding and agreement, however, that any such non
performance shall be excused and relieved only during the period of time such
cause actually exists and for a reasonable period of time thereafter not to
exceed thirty (30) days.
(1) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument. Facsimile counterparts of this
Agreement shall be deemed and construed to be originals of this Agreement.
(m) Recitals. The recitals to this Agreement are hereby incorporated
into this
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Agreement as if fully set forth herein.
(n) Notices. All notices which either party hereto is required or may
desire to give to the other shall be given or made to the following address for
such party, or at such other address or addresses as may be designated in
writing by a party to the notice provisions hereof. Notice communications may be
delivered by facsimile or certified mail return receipt requested, as follows
If to Royal: With a copy to:
Royal Thoughts, LLC Xxxxx Xxxxxx, P.A.
1301 East 79th Street Suite 0000, Xxxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
ATTN: Xxxx Xxxx, Esq.
Facsimile: (000) 000-0000
If to the Companies:
KC Acquisition Corp.
Criticom IDC Corporation With a copy to:
X.X. Xxx 0000
Xxxxx Xxxxxxxxxx, X.X. 00000-0000 Xxxxxxx & Xxxxxxx
Continental Plaza II
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(Signature Page to Immediately Follow).
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IN WITNESS WHEREOF, the parties intending to be legally bound have
executed this Agreement effective the date and year first above written.
KC Acquisition Corporation,
a New Jersey corporation
By: /s/ Xxxxxx X. Few
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Its: President
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Criticom IDC Corporation,
a New Jersey corporation
By: /s/ Xxxxxx X. Few
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Its: President
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Royal Thoughts, LLC,
a Minnesota limited liability company
By: /s/ Xxxxxx Xxxxx
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Its: Chief Manager
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