EXHIBIT 10.102
STOCK PURCHASE AND SALE AGREEMENT
STOCK PURCHASE AND SALE AGREEMENT ("Agreement") dated June 23, 1999
among Xxxx Security International, a Delaware Corporation ("Seller"), and
Environmental Opportunities Fund II, L.P. and Environmental Opportunities Fund
II (Institutional), L.P. , both Delaware Limited Partnerships ("Purchasers").
W I T N E S E T H:
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WHEREAS, Seller has common stock with a par value $.0001 per share in
the amount of 392,857 shares available for sale (the "Shares"); and
WHEREAS, Seller wishes to sell, and Purchasers wish to purchase the
Shares for the purchase price and upon the terms and subject to the conditions
described below;
NOW, THEREFORE, in reliance on the representations, warranties and
agreements and subject to the terms and conditions hereinafter set forth, the
parties hereby agree as follows:
1. SALE AND PURCHASE OF SHARES. Upon the execution of this
Agreement, Seller shall sell, deliver and transfer to Purchasers, and Purchasers
shall purchase from Seller in the amounts set forth on Exhibit A hereto, the
Shares free and clear of all liens, encumbrances or claims of any kind.
2. PURCHASE PRICE. In full consideration for the Shares, Purchasers
shall pay to Sellers, a purchase price as follows:
(a) Upon execution of this Agreement, Purchasers shall provide
$3,299,998.80 to Seller by wire transfer or other good funds. Seller shall
deliver to Purchaser certificates evidencing the Shares no latter than three
days after the purchase price of $3,299,998.80 is paid.
3. DELIVERIES OF SELLER. Upon execution of this Agreement, Seller
shall: (i) deliver, or shall cause to be delivered to Purchasers, certificates
representing the Shares, (collectively, the "Certificates"), (ii) deliver a copy
of the resolutions of the Boards of Directors of Seller authorizing the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein and (iii) execute and deliver such other
documents as Purchasers may reasonable request. The Shares represented by the
Certificates shall be delivered to Purchasers free and clear of all Claims (as
hereinafter defined in Section 4(h)).
4. REPRESENTATIONS AND WARRANTIES OF SELLER. The Seller represents,
warrants and agrees that:
(a) Organization and Qualification. Seller is a corporation duly
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incorporated and existing in good standing under the laws of the State of
Delaware and has the requisite corporate power to
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own its properties and to carry on its business as now being conducted. Seller
and each of its subsidiaries, if any, is duly qualified as a foreign corporation
to do business and is in good standing in every jurisdiction in which the nature
of the business conducted or property owned by it makes such qualification
necessary other than those in which the failure so to qualify would not have a
Material Adverse Effect. "Material Adverse Effect", for purposes of this
Agreement, means any adverse effect on the business, operations, properties,
prospects, or financial condition of the entity with respect to which such term
is used and which is material to such entity and other entities controlled by
such entity taken as a whole.
(b) Authorization; Enforcement.
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(i) Seller has the requisite corporate power and authority to enter
into and perform this Agreement and to issue the Shares and Registrable
Securities, as hereafter defined, in accordance with the terms hereof, (ii) the
execution and delivery of this Agreement by Seller and the consummation by it of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action, and no further consent or authorization of Seller or its
Board of Directors or stockholders is required, (iii) this Agreement has been
duly executed and delivered by Seller, (iv) this Agreement constitutes a valid
and binding obligation of Seller enforceable against Seller in accordance with
its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of, creditors' rights and
remedies or by other equitable principles of general application) and (v) prior
to the Closing Date, any necessary amendment to Seller's Articles of
Incorporation authorizing Company to issue all of the Shares will be in full
force and effect, enforceable against Seller in accordance with the terms of
such amended Articles of Incorporation.
(c) Issuance of Shares. The issuance of the Shares has been duly authorized
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and, when paid for and issued in accordance with the terms hereof, the Shares
shall be validly issued, fully paid and non-assessable.
(d) No Conflicts. Seller has furnished or made available to the Purchasers
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true and correct copies of Seller's Articles of Incorporation as in effect on
the date hereof (the "Articles"), and Seller's By-Laws, as in effect on the date
hereof (the "By-Laws"). The execution, delivery and performance of this
Agreement by Seller and the consummation by Seller of the transactions
contemplated hereby do not and will not (i) result in a violation of Seller's
Articles or By-Laws or (ii) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which Seller or any
of its subsidiaries is a party, or result in a violation of any federal, state,
local or foreign law, rule, regulation, order, judgment or decree (including
Federal and state securities laws and regulations) applicable to Seller or any
of its subsidiaries or by which any property or assets of Seller or any of its
subsidiaries is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect); provided
that, for purposes of such representation as to Federal, state, local or foreign
law,
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rule or regulation, no representation is made herein with respect to any of the
same applicable solely to the Purchasers and not to Seller. To the best of
Seller's knowledge, the business of Seller is not being conducted in violation
of any law, ordinance or regulations of any governmental entity, except for
violations which either singly or in the aggregate do not and will not have a
Material Adverse Effect. Seller is not required under Federal, state or local
law, rule or regulation in the United States to obtain any consent,
authorization or order of, or make any filing or registration with, any court or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement or issue and sell the Shares in accordance with
the terms hereof (other than any SEC, NASD, NASDAQ or state securities filings
which may be required to be made by Seller subsequent to the Closing, and any
registration statement which may be filed pursuant hereto); provided that, for
purposes of the representation made in this sentence, Seller is assuming and
relying upon the accuracy of the relevant representations and agreements of the
Purchasers herein.
(e) SEC Documents, Financial Statements. The Common Stock of Seller is
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registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and Seller has filed on a timely basis all reports,
schedules, forms, statements and other documents required to be filed by it with
the Securities and Exchange Commission ("SEC") pursuant to the reporting
requirements of the Exchange Act, including material filed pursuant to Section
13(a) or 15(d), in addition to one or more registration statements and
amendments thereto heretofore filed by Seller with the SEC under the Securities
Act (all of the foregoing including filings incorporated by reference therein
being referred to herein as the "SEC Documents"). Seller has delivered to the
Purchasers true and complete copies of the SEC Documents except for the exhibits
and incorporated documents. Seller has also delivered to the Purchasers a
Confidential Private Placement Memorandum for the Shares dated June 1999.
Seller has not provided to the Purchasers any information which, according to
applicable law, rule or regulation, should have been disclosed publicly by
Seller but which has not been so disclosed, other than with respect to the
transactions contemplated by this Agreement.
As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act or the Exchange Act as the
case may be and the rules and regulations of the SEC promulgated thereunder and
other federal, state and local laws, rules and regulations applicable to such
SEC Documents, and neither the Memorandum nor any of the SEC Documents
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. The financial statements of Seller included in the SEC Documents
comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC or other
applicable rules and regulations with respect thereto. Such financial
statements have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis during the periods involved (except (i)
as may be otherwise indicated in such financial statements or the notes thereto
or (ii) in the case of unaudited interim statements, to the extent they may not
include footnotes or may be condensed or summary statements) and fairly present
in all material respects the financial position of Seller as of the dates
thereof and the results of operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments).
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(f) No General Solicitation. Neither Seller, nor any of its affiliates, or,
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to the best of its knowledge, any person acting on its or their behalf, has
engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D under the Securities Act) in connection with the offer
or sale of the Shares.
(g) No Integrated Offering. Neither Seller, nor any of its affiliates, nor
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any person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any of Seller'S securities or solicited any offers to buy any
of such securities, under circumstances that would require registration of the
Shares under the Securities Act.
(h) Ownership of the Shares, Absence of Claims. The Seller has the legal
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authority to issue the Shares, and the Shares are free and clear of any and all
liens, pledges, security interests, options, encumbrances, charges, agreements
or claims of any kind whatsoever (collectively, the "Claims").
(i) Commission Filings. Purchasers have delivered to Seller current (for
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the quarter ending September 30, 1998) and all historical filings made by Seller
on Forms 8-K, 10-K, 10-Q and Proxy Statements timely filed with the SEC for
fiscal year ending December 31, 1997 (the "Public Reports"). The Public Reports
accurately and completely describe, in all material respects, Seller'S financial
status, business operations and prospects as of the date of such filings and as
of the date hereof, and do not omit any material fact(S) necessary to make the
information contained in the filings not misleading.
(j) Nasdaq Status. The principal market on which the Shares are currently
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traded is Nasdaq National Market. The Seller is party to two agreements ("Change
of Control Agreements") as follows: (i) a Stock Purchase Agreement dated March
26, 1999, as amended, between the Seller and Xxxxx Xxxxxxx, Xx., regarding the
purchase of common stock from the Seller by Xxxxx Xxxxxxx, Xx. and his designees
and (ii) a Merger Agreement dated March 26, 1999, as amended, between the
Seller, Xxxxx Xxxxxxx, Xx., Red Mountain Holdings, Ltd, regarding the merger of
American Wash Services, Inc into a subsidiary of Mace. The Nasdaq Stock Market,
Inc ("Nasdaq") has advised that as a result of the Change of Control Agreements,
Seller will have to meet the minimum financial requirements for initial listing
on Nasdaq, prior to consummating the Change of Control Agreements. Seller
believes that is will meet the required initial listing requirements of Nasdaq
prior to consummation of the Change of Control Agreements. Other then the
requirement to meet the initial listing requirements of the Nasdaq, the Seller
is in conformance with all listing requirements of the Nasdaq Stock Market, Inc.
("Nasdaq"), and has received no notices of non-compliance from Nasdaq in the
twenty-four months prior to the date of this Agreement.
(k) Closing Under Change of Control Agreements. The Seller represents and
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warrants that the closings under the Change of Control Agreements will occur.
If for any reason the Change of Control Agreements are terminated before a
closing under them takes place, Purchasers as their sole remedy may require the
Seller to purchase the Shares purchased by each Purchaser from each Purchaser in
exchange for the consideration paid by each Purchaser for the Shares, a total of
$3,299,998.80. Purchasers may exercise their right to have the Seller purchase
the Shares from each
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Purchaser within 30 days of being sent a written notice from Seller that the
Change of Control Agreements have been terminated without a closing under the
Change of Control Agreements. Seller agrees to notify Purchasers in writing, if
and when the Change of Control Agreements are canceled without a closing under
the Change of Control Agreements. If Purchasers timely exercise their right to
cause the Seller to purchase the Shares, Seller shall purchase the Shares within
ten (10) days of receiving Purchasers written request that Seller purchase the
Shares.
(l) Capitalization. The authorized capital stock of Seller as set forth in
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its Articles of Incorporation are 20,000,000 shares of Common Stock and
5,000,000 shares of Preferred Stock. As of June 23, 1999, 1999, Seller had
outstanding 9,185,058 shares of Common Stock. All of the outstanding shares of
the Common Stock have been validly issued and are full paid and non-assessable.
Except for shares reserved for issuance under the Company's stock option plan,
shares to be issued in contemplation of this Agreement and contracts requiring
Seller to issue additional shares upon the closing of certain acquisitions
currently under agreement, there are no other scrip, rights to subscribe to,
calls or commitments of any character whatsoever relating to, or securities or
rights exchangeable or convertible into, any shares of capital stock of Seller,
or contracts, commitments, understandings or arrangements by which Seller or
options, warrants, scrip, rights to subscribe to, or commitments to purchase or
acquire, any shares, or securities or rights convertible into shares, of capital
stock of Seller.
(m) No Material Adverse Change. Since December 31, 1998 the date of the
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most recent annual report of Seller on Form 10KSB has been prepared and filed
with the SEC, a copy of which has been supplied to Purchasers, no event which
had or is likely to have a Material Adverse Effect has occurred or exists with
respect to Seller, except as otherwise disclosed or reflected in press releases
or other SEC Documents prepared through or as of a date subsequent to December
31, 1998.
(n) No Litigation. Except as set forth in SEC Documents or otherwise
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disclosed prior to the date of this Agreement, no litigation or claim (including
those for unpaid taxes) against Seller is pending or, to Seller's knowledge
threatened. Seller believes that any litigation or claims that may currently
exist are in the normal course of business and will not have a Material Adverse
Effect upon Seller or effect the transactions contemplated hereby.
(o) Contravention; Consents and Approvals. No filing, action, consent or
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approval of any person, entity or governmental body is required by the Seller
for the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
5. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Purchasers
represent, warrant and agree that:
(a) Execution and Effect of Agreement. Purchasers have the full
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right, power and authority to enter into and perform this Agreement. This
Agreement has been duly executed and delivered by Purchasers and is a legal,
valid and binding obligation of Purchasers enforceable in accordance with its
terms.
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(b) Access to Seller by Purchasers. Purchasers and their
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representatives and advisers have had free and full access during normal
business hours to the Seller'S assets, premises, books and records, key
employees and accountants, and have had the opportunity to ask questions and
receive answers about the past performance and current and future prospects of
the Seller'S business and assets.
(c) Purchase for Investment. The Purchasers understands and
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represents that: (i) the Purchasers must bear the economic risk of an investment
in the Shares for an indefinite period of time because the Shares have not been
registered under the Securities Act of 1933, as amended (the "1933 Act"), or
under any state securities laws and, therefore, cannot be resold unless they are
subsequently registered under the 1933 Act and the pertinent state securities
laws or unless an exemption from such registration is available; (ii) the
Purchasers are purchasing the Shares for investment for the account of the
Purchasers, not for the account of any other person, and not with any present
view toward resale or other "distribution" thereof within the meaning of the
1933 Act; and (iii) the Purchasers agrees not to resell or otherwise dispose of
all or any part of the Shares, except as permitted by law, including, without
limitation, any and all applicable provisions of this Agreement and any
regulations under the 1933 Act.
(d) Risks of Investment. The Purchasers are aware that an investment
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in the Shares is highly speculative and subject to substantial risks. The
Purchasers are capable of bearing the high degree of economic risk and burdens
of this investment, including the possibility of a complete loss of his
investment and the lack of a public market and limited transferability of the
Shares, which may make the liquidation of this investment impossible for an
indefinite period of time. The financial condition of each of the Purchasers is
such that it is under no present or contemplated future need to dispose of any
of the Shares to satisfy any existing or contemplated undertaking, need or
indebtedness.
(e) Contravention; Consents and Approvals. No filing, action, consent or
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approval of any person, entity or governmental body is required by the
Purchasers for the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
6. BROKERS. Each party represents to the other that it has had no
dealings with any broker or finder in connection with the transactions
contemplated by this Agreement. Should any claim be made for a broker'S,
finder'S or similar fee, on account of any actions or dealings by a party or its
agents, such party shall indemnify and hold the other party harmless from and
against any and all liability and expenses, including reasonable attorneys' fees
incurred by reason of any claim made by such broker.
7. FURTHER ASSURANCES. The parties shall cooperate and take such
actions, and execute such other documents, as either may reasonably request in
order to carry out the provisions or purpose of this Agreement, including
without limitation the execution and delivery by Sellers of additional stock
powers duly executed in blank with respect to the Shares. The parties further
agree to execute a Registration Rights Agreement, a Sales Restriction Agreement
and a Warrant Agreement in the form attached hereto and made a part hereof as
Exhibits B, C and D respectively.
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8. REGISTRATION RIGHTS.
(a) The Shares delivered at Closing will not be registered under the
Securities and Exchange Act of 1934 ("Act"). Seller shall provide registration
rights pursuant to the Registration Rights Agreement attached hereto as Exhibit
B.
(b) With respect to the Shares, Seller will furnish to the Purchasers
such number of prospectuses, if required, under the Act, including copies of
preliminary prospectuses, prepared in conformity with the requirements of the
Act, and such other documents as the Purchasers may reasonably request in order
to facilitate the public sale or other disposition of the securities to be sold
by the Purchasers.
(c) All expenses incurred in effecting the registrations provided for
in this Section shall be paid by Seller, including, without limitation, all
registration and filing fees, printing expenses, expenses of any audits incident
to or required by any such registration and expenses of complying with the
securities or "blue sky" laws of any jurisdictions.
9. PREEMPTIVE RIGHTS
(a) Seller hereby grants to the Purchasers a first and prior right to
purchase any and all shares of Common Stock, or securities convertible into
Common Stock or containing an option or warrant to purchase Common Stock
("Derivative Securities"), as may hereafter be issued from time to time by
Seller subsequent to the date hereof. For purposes of this Section 9
"Derivative Securities" do not include options or warrants issued alone and not
in combination with another security. Such right shall exist with respect to
all shares of Common Stock and Derivative Securities originally authorized,
shares hereafter authorized, or treasury shares, but shall not exist with
respect to: (i) shares of Common Stock issued by Seller in a firm commitment or
best efforts underwritten offering to the public, (ii) shares of Commons Stock
issued by Seller upon the exercise or conversion of currently outstanding
Derivative Securities, (iii) shares of Common Stock issued by Seller upon the
exercise of stock options or warrants granted to officers, directors,
consultants and employees of Seller, whether or not granted, pursuant to a stock
option plan approved by the stockholders of Seller, (iv) options, warrants or
shares of Common Stock issued by Seller in connection with the acquisition of
the properties, assets, or business of another Person, or (v) options, warrants
or shares of Common Stock issued in connection with bank financing or equipment
leases or similar financing transactions.
(b) The time for exercising the foregoing rights in Section 9(a) may
be established by the Company's Board of Directors but each Purchaser shall have
a minimum of 15 days in which to consider exercising its right.
(c) The foregoing right in Section 9(a) shall terminate on the
earlier of (i) June 30, 2000 or (ii) the date on which the Purchasers have
purchased shares of Common Stock or Derivative Securities with an aggregate
purchase price of $3,100,000.
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10. CONDITIONS OF PURCHASERS
The obligations of Purchasers to effect the transaction contemplated by
this Agreement shall be subject to the fulfillment at or prior to the time of
Closing of each of the following items which are conditions to the Closing:
(a) Compliance by Seller. The Seller shall have performed and
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complied with all of the obligations and conditions required by this Agreement
to be performed or complied with by the Seller at or prior to the Closing Date.
All representations and warranties of Seller contained in this Agreement shall
be true and correct at and as of the Closing Date, with the same force and
effect as though made at and as of the Closing Date, except for changes
expressly permitted by this Agreement.
(b) Litigation Affecting This Transaction. There shall be no actual
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or threatened action by or before any court which seeks to restrain, prohibit or
invalidate the transaction contemplated by this Agreement or which might affect
the right of Purchasers to own the Shares, as a result of the transaction
contemplated by this Agreement, might affect such right as to Purchasers or any
affiliate thereof subsequent to the Closing Date and which, in the judgment of
the Purchasers, made in good faith and based upon advice of their counsel, makes
it inadvisable to proceed with the transaction contemplated by this Agreement.
(c) Opinion of Counsel. At the Closing, the Purchasers shall have
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received an opinion of counsel from Xxxxxx X. Xxxxxx, Esq. dated the Closing
Date in form and substance reasonably acceptable to the Purchasers and their
counsel and such other opinions, certificates, and documents as the Purchasers
and their counsel shall reasonably require incident to the Closing.
(d) Registration Rights Agreement. The Seller and the Purchasers
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shall have executed and delivered the Registration Rights Agreement, a Sales
Restriction Agreement.
(e) Secretary'S Certificate. The Seller shall have delivered to the
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Purchasers a certificate in form and substance reasonably satisfactory to the
Purchasers, executed by the Secretary of the Seller, on behalf of the Seller,
certifying as to the incumbency of signing officers, the Certificate of
Incorporation, ByLaws, good standing, and authorizing resolutions of the Seller.
11. CONDITIONS OF SELLER
The obligations of the Seller to transfer the Shares in accordance with
this Agreement shall be subject to the fulfillment at or prior to the time of
Closing of each of the following conditions:
(a) Compliance by Purchasers. The Purchasers shall have performed and
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complied with all of the obligations and conditions required by this Agreement
to be performed or complied with by them at or prior to or at the Closing Date.
All representations and warranties of Purchasers contained in this Agreement
shall be true and correct at and as of the Closing Date, with the same force and
effect as though made at and as of the Closing Date, except for changes
expressly permitted by this Agreement.
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(b) Litigation Affecting This Transaction. There shall be no actual
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or threatened action by or before any court which seeks to restrain, prohibit or
invalidate the transaction contemplated by this Agreement or which might affect
the rights of Seller as a result of the transaction contemplated by this
Agreement, might affect such right as to Seller or any affiliate thereof
subsequent to the Closing Date and which, in the judgment of the Seller, made in
good faith and based upon advice of its counsel, makes it inadvisable to proceed
with the transaction contemplated by this Agreement.
(c) Registration Rights Agreement. The Seller and the Purchasers
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shall have executed and delivered the Registration Rights Agreement, and a Sales
Restriction Agreement.
12. NOTICES. All notices or other communications in connection with
this Agreement shall be in writing and shall be considered given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, as follows:
If to Seller:
Xxxx Security International, Inc.
Attn: Xxxxxx X. Xxxxxx, Executive Vice President and General Counsel
Xxxxx 000
0000 Xxxxxxxx Xxxx
Xx., Xxxxxx, Xxx Xxxxxx 00000
000-000-0000
Telecopy: 000-000-0000
If to Purchasers:
Environmental Opportunities Fund II, L.P. and
Environmental Opportunities Fund II (Institutional), L.P.
C/x Xxxxxxx Xxxxxx Xxxxx
Attn: Xxxxx XxXxxxx
000 Xxxxxx Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy: 000-000-0000
13. ENTIRE AGREEMENT. This Agreement, together with the Registration
Rights Agreement and the Stock Sale Restriction Agreement, sets forth the
parties' final and entire agreement with respect to its subject matter and
supersedes any and all prior understandings and agreements. This Agreement may
be amended, supplemented or changed, and any provision hereof may be waived,
only by a written instrument making specific reference to this Agreement signed
by the party against whom enforcement of any such amendment, supplement, change
or waiver is sought.
14. GOVERNING LAW. This Agreement shall be governed by and construed
and
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interpreted in accordance with the internal laws of the State of Delaware
(without reference to its rules as to conflicts of law).
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one and the same instrument.
16. FEES AND EXPENSES. Upon Closing, the Seller shall pay the
reasonable fees and disbursements of one counsel to the Purchasers, in
connection with the review of this Agreement, the Registration Rights Agreement,
the Sales Restriction Agreement, and the transaction contemplated hereby and
thereby, and the costs and out-of-pocket expenses of the Purchasers in
connection with its due diligence investigation of the Seller; provided that the
total amount payable to the Purchasers or their counsel and representatives
hereunder shall not exceed $15,000.
17. SURVIVAL OF AGREEMENTS. The representations and warranties,
covenants, and agreements made herein in the Registration Rights Agreement and
the Sales Restriction Agreement, as well as in each certificate delivered to the
Purchasers pursuant hereto, shall survive the Closing and remain in effect so
long as the Purchasers own any of the Shares. The Seller agrees to indemnify
and hold each of the Purchasers harmless from and against and will pay to the
Purchasers the full amount of any loss, damage, liability, cost or expense
(including amounts paid in settlement and reasonable attorneys' fees and
expenses) to each of the Purchasers resulting either directly or indirectly from
any breach of the representations and warranties, covenants, or agreements of
the Seller contained in this Agreement or the Registration Rights Agreement or
the Sales Restriction Agreement or in any certificate delivered to the
Purchasers pursuant hereto or thereto or in connection herewith or therewith.
Each of the Purchasers agrees to indemnify and hold the Seller harmless from and
against and will pay to the Seller the full amount of any loss, damage,
liability, costs, or expense (including amounts paid in settlement and
reasonable attorneys' fees and expenses) to the Seller resulting either directly
or indirectly, from any breach of the representations, warranties, covenants, or
agreements of the Purchasers contained in this Agreement or the Registration
Rights Agreement or in the Sales Restriction Agreement.
18. SEVERABILITY. Each provision of this Agreement shall be treated
as a separate and independent clause, and the unenforceability of any one clause
shall in no way impair the enforceability of any of the other clauses herein.
If one or more of the provisions contained in this Agreement shall for any
reason be held unenforceable, such provision or provisions shall be construed by
the appropriate judicial body by limiting or reducing it or them, so as to be
enforceable to the maximum extant compatible with applicable law, and no other
provision shall be affected by such holding, limitation, or reduction.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the date first above written.
SELLER:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Exec. Vice President and General
Counsel
PURCHASERS:
Environmental Opportunities Fund II LP
By: Fund II Management Co., LLC, its General Partner,
/s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx, Manager
Environmental Opportunities Fund II (Institutional) LP
By: Fund II Management Co., LLC, its General Partner,
/s/ Xxxxx X. XxXxxxx
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Xxxxx X. XxXxxxx, Manager
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Exhibit A
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Xxxx Security International, Inc Common Stock
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Name of Purchaser Price Per Share Number of Shares Total Price
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Environmental Opportunities Fund II
(Institutional), L.P. $8.40 per share 308,785 $ 2,593,794
Environmental Opportunities Fund II, L.P. $8.40 per share 84,072 $706,204.80
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