UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Ultrak, Inc.
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(Name of Issuer)
Common Stock,
$0.01 par value
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(Title of Class of Securities)
903898401
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(CUSIP Number)
Thomas F. Larkins, Esq.
Honeywell International Inc.
101 Columbia Road
P.O. Box 4000
Morristown, NJ 07962
(973) 455-2000
With a Copy to:
David K. Robbins, Esq.
Fried, Frank, Harris, Shriver & Jacobson
350 South Grand Avenue, 32nd Floor
Los Angeles, CA 90071
(213) 473-2000
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(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications)
December 5, 2002
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of ss.ss.240.13d-1(e), 240.13d-1(f) or
240.13(g), check the following box |_|.
Note: Schedules filed in paper format shall include a signed original and
five copies of the schedule, including all exhibits. See ss.240.13d-7(b)
for other parties to whom copies are to be sent.
INTRODUCTION
This statement amends the Schedule 13D filed on August 19, 2002,
as amended on November 14, 2002, and November 27, 2002 (the "Amended
Schedule 13D"), by Honeywell International Inc., a Delaware corporation
("Honeywell"), with respect to the shares of common stock, $0.01 par value
("Company Common Stock"), of Ultrak, Inc., a Delaware corporation (the
"Company"). Capitalized terms used and not defined in this Amendment No. 3
shall have the meanings set forth in the Amended Schedule 13D. Except as
specifically provided herein, this Amendment No. 3 does not modify any of
the information previously provided on the Amended Schedule 13D.
1. ITEM 4 OF THE SCHEDULE 13D IS HEREBY AMENDED TO ADD THE FOLLOWING
INFORMATION:
ITEM 4. Purpose of Transaction.
----------------------
On December 5, 2002, Honeywell, the Company and the Company
Subsidiaries entered into an Amendment to the Asset Purchase Agreement (the
"Amendment").
The Asset Purchase Agreement requires the Company to deliver an
executed legal non-infringement opinion with respect to U.S. Patent No.
4,974,088 (the "Lectrolarm Patent") held by Lectrolarm Custom Systems, Inc.
("Lectrolarm") to Honeywell. The Company could not satisfy this closing
condition. As a result, the Company entered into a license agreement with
Lectrolarm (the "Lectrolarm License") with respect to the Lectrolarm
Patent. Pursuant to the terms of the Amendment, the non-infringement
opinion closing condition was replaced with the requirements that the
Company (i) assign the Lectrolarm License to Honeywell at the closing of
the transactions contemplated by the Asset Purchase Agreement (the
"Closing") and (ii) comply with and maintain the Lectrolarm License in full
force and effect through the Closing and make all required payments
thereunder through the Closing, including but not limited to the $250,000
initial royalty payment due thereunder. The Amendment also provides for an
increase of $2,215,000 in the deferred portion of the purchase price (the
"Lectrolarm Holdback") and a corresponding decrease of $2,215,000 of the
initial purchase price payable by Honeywell to the Company. As a result of
the Lectrolarm Holdback, the initial purchase price decreased from
$30,600,000 to $28,385,000. The Lectrolarm Holdback will be separate from
the other deferred portion of the purchase price and will be disbursed by
Honeywell to Lectrolarm pursuant to the terms of the Lectrolarm License in
satisfaction of any royalty payments due to Lectrolarm under the Lectrolarm
License. The Lectrolarm Holdback shall accrue interest at a variable rate.
Upon termination of the Lectrolarm Holdback, any unused balance of the
Lectrolarm Holdback, plus interest accrued thereon shall be paid to the
Company and 50% of the interest, if any, that has otherwise accrued with
respect to the Lectrolarm Holdback will be paid by Honeywell to the Company
and the other 50% of such interest, if any, will be retained by Honewell.
Concurrent with the execution of the Amendment and the Lectrolarm
License, Victoria and Eagle Strategic Fund, Niklaus F. Zenger, George K.
Broady and Myriam Hernandez each executed a letter agreement with Honeywell
(the "Acknowledgment") acknowledging and agreeing that each of their
respective shares of the Company are and continue to be subject to the
Voting Agreements and that all references to the Asset Purchase Agreement
in the Voting Agreements mean the Asset Purchase Agreement as amended to
date, including the Amendment.
The foregoing descriptions of the Amendment and the
Acknowledgement are qualified in their entirety by the complete text of the
Amendment and the Acknowledgement, which are attached hereto as Exhibits 6
and 7, respectively, and incorporated herein by reference.
ITEM 7. Material to be Filed as Exhibits.
--------------------------------
Exhibit 6 Amendment to Asset Purchase Agreement, dated as of
December 5, 2002, among Honeywell, the Company and the
Company Subsidiaries.
Exhibit 7 Letter Agreement, dated as of December 5, 2002, among
Honeywell, Victoria and Eagle Strategic Fund, Niklaus F.
Zenger, George K. Broady and Myriam Hernandez.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
HONEYWELL INTERNATIONAL INC.
By: /s/ Peter M. Kreindler
------------------------------------
Name: Peter M. Kreindler
Title: Senior Vice President and
General Counsel
Dated: December 6, 2002
EXHIBIT INDEX
Document
--------
Exhibit 6 -- Amendment to Asset Purchase Agreement, dated as of
December 5, 2002, among Honeywell, the Company and
the Company Subsidiaries.
Exhibit 7 -- Letter Agreement, dated as of December 5, 2002,
among Honeywell, Victoria and Eagle Strategic Fund,
Niklaus F. Zenger, George K. Broady and
Myriam Hernandez.
Exhibit 99.6
AMENDMENT
to
ASSET PURCHASE AGREEMENT
AMENDMENT (this "Amendment"), dated as of December 5, 2002, to the
Asset Purchase Agreement (the "Asset Purchase Agreement"), dated as of
August 8, 2002, as amended by a letter agreement dated November 26, 2002,
between Ultrak, Inc., a Delaware corporation ("Ultrak," and together with
the entities listed on Schedule A thereto, the "Sellers"), and Honeywell
International Inc., a Delaware corporation (the "Purchaser"). Capitalized
terms used herein and not defined herein shall have the respective meanings
ascribed to such terms in the Asset Purchase Agreement.
RECITAL
-------
WHEREAS, the parties have agreed to amend the Asset Purchase
Agreement, but only upon the terms and subject to the conditions set forth
below.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
1. Sale and Purchase of the Purchased Assets.
-----------------------------------------
Section 1.1(a) of the Asset Purchase Agreement shall be amended to
read in its entirety as follows:
"(a) Subject to the terms and conditions of this Agreement, at the
Closing, the Sellers will sell, and the Purchaser will purchase, all of the
Purchased Assets for an aggregate purchase price of $36,000,000 (the
"Purchase Price"), (i) $28,385,000 of which will be payable in cash at the
Closing (the "Initial Purchase Price"), (ii) $5,400,000 (the "Deferred
Purchase Price") of which will be payable in cash in three equal
disbursements of $1,800,000 each, plus interest accrued thereon since the
Closing Date at the Base Rate (as defined in Section 1.3(d) below), with
the first disbursement to occur on the date that is 6 months following the
Closing Date, the second disbursement to occur on the date that is 12
months following the Closing Date and the final disbursement to occur on
the date that is 18 months following the Closing Date and (iii) $2,215,000
(the "Lectrolarm Holdback") that will be payable as provided in Section
1.3(g) below together with interest accrued thereon since the Closing Date
at the Lectrolarm Rate; provided, however, that the first two disbursements
of the Deferred Purchase Price shall be subject to reduction (without
duplication) in amounts equal to (i) any Closing Deficit (as defined in
Section 1.3(d) below), (ii) any Losses (as defined in Section 8.2 below)
actually incurred by the Purchaser not related to third party claims for
which the Purchaser is entitled to indemnification pursuant to Section 8.2,
it being understood that any amounts not disbursed by the Purchaser for
Losses incurred pursuant to this clause (ii), if related to a claim made
pursuant to Section 8.2(b), must be in excess of any remaining Deductible
(as defined in Section 8.4) and (iii) any amount related to claims made by
third parties against the Purchaser or its Affiliates for which they are
entitled to indemnification pursuant to Section 8.2. The third and final
disbursement of the Deferred Purchase Price shall be subject to reduction
in amounts described in clauses (i) through (iii) above, as well as for
amounts equal to any good faith claims made by the Purchaser against the
Sellers for indemnification pursuant to Article VIII that remain unresolved
at the time of such disbursement ("Unresolved Claims"). Notwithstanding the
foregoing, the parties hereto agree that once the aggregate amount of the
Purchaser's Losses incurred pursuant to Section 8.2(b) has reached the
Deductible, the Deferred Purchase Price shall be subject to reduction in
all amounts described in clauses (ii) and (iii) above. No interest shall
accrue or be paid to Sellers with respect to any portion of the Deferred
Purchase Price not disbursed to Sellers pursuant to clauses (i), (ii) or
(iii) above. In the event of a dispute between the Sellers and the
Purchaser in connection with any scheduled disbursement of the Deferred
Purchase Price, the parties shall resolve such dispute pursuant to Section
9.13 hereof. Any amounts for Unresolved Claims that are resolved in favor
of Sellers following the final disbursement of the Deferred Purchase Price
shall be promptly paid to Sellers plus interest accrued thereon since the
Closing Date computed using the Base Rate upon resolution of such
Unresolved Claims. The Purchase Price shall be subject to adjustment as
hereinafter provided in Section 1.3. All amounts owed under the License
Agreement shall be deducted from the Lectrolarm Holdback and not from the
Deferred Purchase Price; provided, however, that any Losses or Unresolved
Claims that arise from or relate to the $250,000 initial royalty payment
due under the License Agreement shall be deductible from the Deferred
Purchase Price."
2. Section 1.3(g) (Post-Closing Purchase Price Adjustment).
-------------------------------------------------------
A new Section 1.3(g) shall be added to the Asset Purchase Agreement to
read in its entirety as follows:
"(g) The Lectrolarm Holdback shall be disbursed by the Purchaser to
Lectrolarm pursuant to the terms of the Lectrolarm License with respect to
sales by the Purchaser of those Products that were formerly sold by the
Sellers and any new models of such Products which are covered by the
royalty obligations of the Lectrolarm License. Any unused balance of the
Lectrolarm Holdback plus interest thereon at the Lectrolarm Rate from the
Closing Date shall be paid by the Purchaser to the Sellers promptly (and in
any event within five (5) days) upon termination or expiration of the
Lectrolarm License pursuant to its terms or after a decision by a court of
competent jurisdiction that is either not timely appealed or from which no
appeal can be taken holding that either (i) the Lectrolarm Patent is
invalid or (ii) none of the Products that require royalty payments under
the Lectrolarm License infringe the Lectrolarm Patent. Amounts in the
Lectrolarm Holdback shall accrue interest at the Lectrolarm Rate from the
Closing Date until disbursed pursuant to the Lectrolarm License. After
disbursement of the Lectrolarm Holdback, as described above in this Section
1.3(g), 50% of any interest, if any, accrued on the Lectrolarm Holdback at
the Lectrolarm Rate that has not been disbursed to Lectrolarm or the
Sellers shall be paid by the Purchaser to the Sellers and the other 50% of
such interest shall be retained by the Purchaser. The Purchaser shall
promptly provide the Sellers with copies of royalty reports made to
Lectrolarm under the License Agreement. Upon written request by the
Sellers, the Purchaser will make available to the Sellers during normal
business hours all records related to the sales of the Products requiring a
royalty payment under the Lectrolarm License and all royalty payments to
Lectrolarm from the Lectrolarm Holdback as the Sellers may reasonably
request. The Purchaser understands and agrees that Lectrolarm License only
applies to the Products and any new models of Products of the Business.
Except for the Sellers' failure to pay amounts owed by them under the
Lectrolarm License, including but not limited to the $250,000 initial
royalty payment due thereunder, and except for any fraud, willful
misconduct or bad faith of the Sellers, the Purchaser shall not make any
claims against the Sellers with respect to the Lectrolarm Patent or the
Lectrolarm License that relate to the Products that were formerly sold by
the Sellers and any new models of such Products that require royalty
payments under the Lectrolarm License. In the event of a dispute between
the Sellers and the Purchaser in connection with the Lectrolarm Holdback,
the Sellers and the Purchaser shall resolve such dispute pursuant to
Section 9.13 hereof."
3. Section 7.3 (Conditions to Obligations of the Purchaser).
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a. Section 7.3(t) of the Asset Purchase Agreement shall be amended to
read in its entirety as follows:
"(t) Intentionally omitted."
b. Section 7.3(w) of the Asset Purchase Agreement shall be amended to
read in its entirety as follows:
"(w) Non-infringement Opinion. The executed legal non-infringement
opinion of George R. Schultz addressed and delivered to the Purchaser with
respect to Patent No. 5627616 shall not have been withdrawn or changed or
modified in a manner adverse to the Purchaser as determined by the
Purchaser."
c. A new Section 7.3(z) shall be added to the Asset Purchase Agreement
to read in its entirety as follows:
"(z) Lectrolarm License. The Business has acquired a license to the
Lectrolarm Patent (the "Lectrolarm License") (a copy of which is attached
hereto as Exhibit 7.3(z)) and such license is in full force and effect. The
Lectrolarm License is fully transferable to the Purchaser and its assigns
without restriction and without cost or other charge to the Purchaser or
assignee whatsoever and shall be assigned to the Purchaser (or its assigns)
on the Closing Date in a form satisfactory to the Purchaser. The Sellers
shall have complied with the Lectrolarm License and the Lectrolarm License
shall be in full force and effect and all required payments shall have been
made thereunder through the Closing, including but not limited to the
$250,000 initial royalty payment due thereunder."
4. Section 9.15 (Maxpro/VST Legal Fees).
------------------------------------
A new Section 9.15 shall be added to the Asset Purchase Agreement to
read in its entirety as follows:
"Maxpro/VST Legal Fees. The Sellers shall bear and pay all of the
legal fees and expenses of counsel (including but not limited to Colby
Williams at the law firm of Campbell and Williams and Gardere Wynne Sewell
LLP) incurred, whether billed or unbilled, in connection with the Maxpro
Litigation through the date of the Closing. At the Closing, the Sellers
shall deliver a cashiers check payable to Campbell and Williams for
services rendered and expenses incurred to such date. The Purchaser shall
bear and pay all of the legal fees and expenses of counsel incurred after
the Closing Date in connection with the Maxpro Litigation. Prior to the
Closing Date, the Sellers shall not enter into any settlement agreement,
judgment or other resolution with respect to the Maxpro Litigation without
the prior written consent of the Purchaser. Any such settlement, judgment
or resolution of the Maxpro Litigation shall be freely assignable to the
Purchaser and shall be assigned to the Purchaser on the Closing Date."
5. To the Purchaser's knowledge, the Sellers are in compliance with the
LeeMAH Operating Targets as of the date of this Agreement other than clause
(ii) of the LeeMAH Operating Targets as such clause was defined prior to
the effectiveness of this Amendment. The Sellers acknowledge and agree that
they are and will continue to use their best efforts to remain in
compliance with the LeeMAH Operating Targets through the Closing Date (as
such clause is defined herein).
6. Section 10.1 (Definitions).
--------------------------
a. Section 10.1 of the Asset Purchase Agreement shall be amended by
inserting the following terms with the following definitions thereof:
i. "Lectrolarm: Lectrolarm Custom Systems, Inc."
ii. "Lectrolarm Holdback: as defined in Section 1.1(a)."
iii. "Lectrolarm License: as defined in Section 7.3(z)."
iv. "Lectrolarm Patent: Patent No. 4,974,088."
v. "Lectrolarm Rate: the offered rate of the 30-day H.15
non-financial commercial paper at the close of trading on the last business
day of each calendar month during which any portion of the Lectrolarm
Holdback is retained by the Purchaser as such rate is reported by Bloomberg
on page H15N030Y."
vi. "Maxpro Litigation: Ultrak, Inc. v. Visual Security Technology Pty
Limited and Christopher Davies (case number CV-S02-1217 LRH (LRL), filed on
September 16, 2002 in United States District Court for the District of
Nevada) and any investigations, discovery, appeals, judgments, decisions,
settlements, counterclaims, countersuits, or alternative dispute
resolutions arising therefrom or related thereto."
b. Section 10.1 of the Asset Purchase Agreement shall be amended by
amending the following terms:
Clause (ii) of the definition of "LeeMAH Operating Targets" shall be
amended to read in its entirety as follows:
"between December 5, 2002 and the Closing, Sellers shall sustain a
production rate of Manufactured Products at a rate in excess of the order
input rate during such time period;"
7. Representation of the Sellers. The Sellers hereby represent and
warrant to the Purchaser that the Ultrak Board, at a meeting duly called
and held, duly and unanimously (by all members present) adopted resolutions
approving this Amendment and the transactions contemplated hereby and such
resolutions are the only resolutions necessary in order for the
transactions contemplated by this Agreement to comply with Ultrak's charter
and bylaws. This Amendment has been duly executed and delivered by the
Sellers, and constitutes the legal, valid and binding obligation of each of
the Sellers, enforceable against each of them in accordance with its terms,
except to the extent of the Enforceability Exceptions.
8. Covenant of the Sellers. The Sellers hereby covenant and agree that
promptly after the execution of this Amendment, Ultrak shall mail
supplemental proxy material to its stockholders reflecting this Amendment
and resolicit stockholder approval of the transactions contemplated by the
Asset Purchase Agreement and file such supplemental proxy material with the
SEC.
9. Asset Purchase Agreement Remains in Effect. Except as expressly amended
herein, the Asset Purchase Agreement shall continue to be, and shall
remain, in full force and effect. This Amendment shall not be deemed to be
a waiver of, or consent to, or a modification or amendment of, any other
term or condition of the Asset Purchase Agreement.
10. Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts (which may include
counterparts delivered by facsimile transmission) and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
11. Governing Law. This Amendment will be construed, performed and enforced
in accordance with the laws of the State of Delaware without giving effect
to its principles or rules of conflict of laws thereof to the extent such
principles or rules would require or permit the application of the laws of
another jurisdiction.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
SELLERS:
ULTRAK, INC.
By: /s/ Chris T. Sharng
-------------------------------------
Name: Chris T. Sharng
Title: Senior Vice President and CFO
ULTRAK OPERATING, L.P.
By: Ultrak GP, Inc., its sole General Partner
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK GP, INC.
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK LP, INC.
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK OHIO, INC.
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK (ASIA PACIFIC) PTY. LTD.
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: Director and CFO
ULTRAK DEUTSCHLAND GMBH
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK (SA) (PROPRIETARY) LIMITED
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: Director and CFO
ULTRAK ITALIA, SpA
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK (ASIA) PTE. LTD.
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK POLSKA, Sp.z. O.O
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: Director and CFO
ULTRAK HOLDINGS LIMITED
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: CFO
ULTRAK (UK) LIMITED
By: /s/ Chris T. Sharng
----------------------------------
Name: Chris T. Sharng
Title: Director and CFO
PURCHASER:
HONEYWELL INTERNATIONAL INC.
By: /s/ Roger Fradin
----------------------------------
Name: Roger Fradin
Title: President, ACP
Exhibit 7.3(z)
Lectrolarm License Agreement
AMENDED LICENSE AGREEMENT
This is an agreement ("AGREEMENT") dated and effective as of the 1st
day of December 2002 ("EFFECTIVE DATE") by and between Lectrolarm Custom
Systems, Inc. with offices located at 3120 Summer Avenue, Memphis,
Tennessee 38112 ("LECTROLARM") and Ultrak, Inc. with offices located at
1301 Waters Ridge Drive, Lewisville, Texas 75057 ("ULTRAK").
RECITALS
--------
WHEREAS Lectrolarm is the owner of all rights, title and interest in U.S.
Patent No. 4,974,088 entitled "Remote Control Apparatus for a Rotating
Television Camera Base" which involves a programmable camera base remote
control technology that is extensively used in surveillance,
video-conferencing and pan/tilt/zoom camera control systems ("'088
PATENT");
WHEREAS Ultrak is engaged in the manufacture and selling of remote camera
technology that involve pan and tilt cameras that pre-set tours;
WHEREAS Lectrolarm is currently involved in a patent infringement court
proceeding in the U.S. District Court for the Eastern District of
California (CIV F-01-6171 OWW DLB) against PELCO Sales, Inc. ("PELCO")
concerning allegations of infringement by PELCO of the claims of the `088
Patent; and
WHEREAS Ultrak is interested in obtaining a license from Lectrolarm to
manufacture and sell its products that fall within one or more claims of
the `088 Patent, and Lectrolarm is desirous of granting Ultrak a license
under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties
agree to be bound as follows:
ARTICLE 1 - DEFINITIONS
-----------------------
The following terms shall have the meanings set forth below.
1.1 "AFFILIATE" is any entity that directly or indirectly controls, is
controlled by, or is under common control with a Party, and for such
purpose "control" shall mean the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of
the entity, whether through the ownership of voting securities, by contract
or otherwise. The term affiliate shall not now or in the future directly or
indirectly include Pelco, Sony, Sensormatic (or Tyco), Kalatel and/or Vicon
or any affiliate, subsidiary, parent or partner of Pelco, Sony, Sensormatic
(or Tyco), Kalatel, or Vicon.
1.2 "CALENDAR QUARTER" is the usual and customary calendar quarter,
used for internal accounting purposes, of three (3) calendar months.
1.3 The term "INFRINGEMENT" shall also include contributory
infringement and/or inducement to infringe.
1.4 "INITIAL ROYALTY" shall have the meaning as set forth in Section
3.1 below.
1.5 "LICENSED PRODUCTS" means all products made by or for, used,
imported, sold or offered for sale by Ultrak that would infringe the `088
Patent but for the License, including but not limited to Dome Products.
1.6 "DOME PRODUCTS" means the pan and tilt camera domes, which
incorporate a memory, which products are listed in Exhibit A.
1.7 "NET SALES" means the invoice price (or if no invoice, the price
reflected in other transactional documentation) on sales by Ultrak or its
Affiliates of Dome Products to a third party, less the following amounts:
(a) credits or allowances actually granted upon claims, discounts or
returns, (b) freight and insurance charges paid for delivery, and (c) taxes
or other governmental charges levied on or measured by the invoiced amount
whether absorbed by the billing or the billed party.
1.8 "NOTIFY" OR "NOTICE" shall have the meaning as set forth in
Section 11.2 of this Agreement.
1.9 "PARTIES" OR "PARTY" as used in this Agreement means Lectrolarm
and Ultrak.
1.10 "U.S. PATENT NO. 4,974,088" or "THE `088 PATENT" means U.S.
Patent No. 4,974,088 and any patent applications, re-issues, renewals,
substitutions, re-examinations, extensions, divisionals or continuations
filed or pending in the U.S. Patent & Trademark Office which claim priority
to U.S. Patent No. 4,974,088, and all foreign counterparts thereof.
1.11 "ROYALTY" shall mean the Initial Royalty, Additional Royalty and
the Running Royalty.
1.12 "ROYALTY BEARING COMPONENTS" means the components of the Licensed
Products, or any other components that involve pan and tilt video camera
systems that have pre-set tours (presently existing or introduced in the
future).
1.13 "RUNNING ROYALTY" shall have the meaning as set forth in Section
3.3 of this Agreement.
1.14 "TERM" shall have the meaning as set forth in Section 2.5 of this
Agreement.
1.15 [intentionally omitted]
1.16 "LICENSE" shall mean the License granted under the terms of this
Agreement.
ARTICLE 2 - LECTROLARM LICENSE GRANT
------------------------------------
2.1 License. Subject to the terms and conditions of this Agreement,
Lectrolarm grants to Ultrak a limited personal non-exclusive license under
the `088 Patent to make, have made, use, import, sell, and offer for sale,
in the United States, the Licensed Products and Royalty Bearing Components
for the Term. The License extends to all distributors, resellers and
Affiliates of Ultrak. This License shall commence on the Effective Date. No
license shall be directly or indirectly provided hereby to Pelco, Vicon,
Sensormatic (or Tyco) or Kalatel.
2.2 Royalty. The License as set forth in Section 2.1 shall be subject
to a Running Royalty as defined in Section 3.4 below, payable until the end
of the Term. Any Royalty obligations due and owing at the expiration or
termination of the license shall remain due and payable in accordance with
the payment provisions of Article 3 below.
2.3 Marking. Ultrak agrees, as soon as is practicable, to mark its
Licensed Products and Royalty Bearing components and related literature and
packaging with the following: "Sold under License U.S. Patent No.
4,974,088." Ultrak agrees to modify the above-noted patent marking to add
the patent numbers of any additional U.S. patents which may be issued to
Lectrolarm from any continuation applications, reissue applications,
divisional or reexaminations of the `088 Patent which become licensed to
Ultrak pursuant to the License.
2.4 No Sublicensing. Except as specifically set forth in this
Agreement, the rights licensed in this Agreement may not be sublicensed by
Ultrak.
2.5 Term. The Term of this Agreement and the license set forth in
Section 2.1 shall commence on the Effective Date and expire on the latest
expiration date of the `088 Patent, as defined herein.
ARTICLE 3 - ROYALTY PAYMENTS
----------------------------
3.1 Initial Royalty. Ultrak shall pay Lectrolarm six hundred and fifty
thousand U.S. Dollars ($650,000) as a fully paid-up Initial Royalty for the
license granted in Article 2 above. The Initial Royalty shall cover,
include and extinguish any and all royalties for Net Sales of Licensed
Products and Royalty Bearing Components made prior to the Effective Date of
this Agreement. Two hundred and fifty thousand U.S. Dollars ($250,000) of
this initial royalty shall be payable within forty five (45) days of the
Effective Date and the remaining four hundred thousand U.S. Dollars
($400,000) of this Initial Royalty shall be payable in two equal
installments, the first by January 15, 2004 and the second by March 15,
2004.
3.2 [intentionally omitted]
3.3 Quarterly Running Royalty. In further consideration for the
License granted herein, Ultrak shall pay Lectrolarm a Running Royalty. The
quarterly Running Royalty shall accrue from and after the Effective Date
but the first payment thereof shall be due on or before March 15, 2004. The
first quarterly payment of the Running Royalty shall cover all sales of the
Licensed Products and the Royalty Bearing components starting from
Effective Date up to December 31, 2003 and shall be calculated according to
the Running Royalty Rate. Subsequent Calendar Quarter Running Royalty
payments shall be paid on the last day of the calendar month following the
end of the Calendar Quarter.
3.4 Running Royalty Rate. The commercially reasonable rate for the
Running Royalty is ordinarily five percent (5%) of Net Sales of the
Licensed Products and the Royalty Bearing Components. Because Ultrak is the
first licensee to the `088 Patent and has agreed to willingly take a
license, the Running Royalty is discounted to be equal to three point three
percent (3.3%) of Net Sales of the Dome Products.
3.5 Minimum Royalty Payments. Ultrak shall not have any minimum
royalty obligations under this Agreement.
3.6 Place for Payment. All Royalty payments shall be made in U.S.
dollars by Ultrak to Lectrolarm at 3120 Summer Avenue, Memphis, Tennessee
38112 or to such other address as Lectrolarm shall designate in its
discretion.
3.7 Late Payments. The Running Royalty quarterly payments shall be due
on the first day of the calendar month for the preceding Calendar Quarter.
In the event that Ultrak is delinquent on its Initial Payment or Running
Royalty payment after thirty (30) days, then Ultrak shall pay a late
payment fee of one and one-half percent (1 1/2%) per month, and upon
Ultrak's continued failure to make the required payment, after Lectrolarm
giving sixty (60) days written notice to Lectrolarm shall have the right to
immediately terminate this Agreement and license. Ultrak's royalty
obligations owed up to such terminations shall survive any termination.
3.8 Royalty Payment Suspension. If at any time one or more claims of
the `088 patent is held to be invalid so that there are no infringing
products, then Ultrak's obligations to make any payments under this
agreement shall be suspended. If any such holding of invalidity is reversed
on appeal, then within 30 days, Ultrak shall resume payments including
payment of any and all accrued amounts during the suspension. Ultrak shall
have no obligation to pay any accrued amounts if such holding of invalidity
is not appealed or reversed on appeal.
ARTICLE 4 - MOST FAVORED LICENSEE
---------------------------------
4.1 During the Term, Lectrolarm shall offer to Ultrak 65% of the
royalty rate that Lectrolarm licenses the `088 Patent to any other
Licensee. The new royalty rate shall be available to Ultrak on a go-forward
basis commencing on the date that Lectrolarm notifies Ultrak of the lower
royalty rate it has granted to any other Licensee. In no event shall the
terms of this Section apply to reduce royalty rates granted to Lectrolarm's
licensees, other than Ultrak.
ARTICLE 5 - ULTRAK RECORD KEEPING AND REPORTS
---------------------------------------------
5.1 Ultrak shall keep accurate books and records of the Net Sales of
the Licensed Products and Royalty Bearing Components, and all payments due
Lectrolarm hereunder. Ultrak shall deliver to Lectrolarm written reports of
Net Sales of Dome Products and during the preceding Calendar Quarter on or
before the thirtieth (30th) day following the end of each Calendar Quarter
("Royalty Reports". Such Royalty Reports shall include a summary of the
Dome Products sold and revenue received for the relevant time period.
5.2 Lectrolarm shall have the right at its own expense on an annual
basis, after providing seven (7) days advance Notice to Ultrak, to have
access to Ultrak's books and records during reasonable business hours for
the sole purpose of auditing the Royalty Reports (and supporting books and
records) or verifying Royalties payable as provided for in this Agreement.
During the inspection, Lectrolarm shall solicit or receive only information
relating to the accuracy of the Royalty Report and the Royalty payments
made according to this Agreement. Ultrak shall be entitled to withhold
approval of said accountant unless the accountant agrees to sign a
commercially reasonable confidentiality agreement with Ultrak which will
obligate such accountant to hold the information it received from Ultrak in
confidence except for information necessary for disclosure for Lectrolarm
to establish the accuracy of the Royalty Reports and/or Royalty payments.
In the event that such an audit reveals Royalties due and owed in
Lectrolarm's favor by more than ten percent (10%) of Royalties paid, Ultrak
shall promptly reimburse Lectrolarm for the audit expenses and such
Royalties owed.
ARTICLE 6 - MUTUAL RELEASE AND COVENANT NOT TO SUE
--------------------------------------------------
6.1 In consideration of the payments, covenants and releases described
herein, Lectrolarm hereby releases Ultrak from any and all manner of action
or actions, cause or causes of action, claims for damages, suits, debts,
attorneys' fees, damages, sums of money or claims of any type whatsoever,
relating to the `088 Patent which existed or may have existed on or before
the Effective Date, including but not limited to all claims for patent
infringement.
6.2 In consideration of the covenants and releases described herein,
Ultrak hereby releases and forever discharges Lectrolarm and its Affiliates
from any and all manner of action or actions, cause or causes of action,
claims for damages, suits, debts, attorneys' fees, damages, sums of money
or claims of any type whatsoever, whether know or unknown, relating to the
`088 Patent which existed or may have existed on or before the Effective
Date.
6.3 Subject to the terms and conditions of this Agreement, Ultrak, on
behalf of itself and its Affiliates, covenants and agrees not to:
(i) initiate, engage or assist in any proceeding, to invalidate or render
unenforceable any claim of the `088 Patent;
(ii) aid, participate with, collaborate with or assist any other person or
entity in that person's or entity's proceeding to invalidate or render
unenforceable any claim of the `088 Patent, except as required by
court order or subpoena.
6.4 If Ultrak breaches the provisions of Section 6.3, Lectrolarm shall
have the right to terminate the License granted under this Agreement.
6.5 Ultrak, on behalf of itself and its Affiliates, stipulates and
acknowledges that the `088 is valid and enforceable.
ARTICLE 7 - TERMINATION
-----------------------
7.1 Except as set forth in Section 3.8 of this Agreement, Ultrak or
Lectrolarm may terminate this Agreement upon ninety (90) days prior written
notice of any material breach or default of the other Party of any material
provision of this Agreement. Such written notice shall be sent to the other
party in accordance with Section 11.2. Termination shall become effective
at the end of the ninety (90) days period unless during such period the
party alleged to be in breach or default cures the breach or default. This
Agreement will remain in full force and effect during any ninety (90) days
cure period.
ARTICLE 8 - WARRANTIES AND REPRESENTATIONS
------------------------------------------
8.1 Lectrolarm. The License provided herein is provided to Ultrak "AS
IS" without warranty of any kind LECTROLARM HEREBY DISCLAIMS ANY AND ALL
EXPRESS OR IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF FITNESS
FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT.
8.2 Ultrak.
(a) Ultrak represents and warrants that, since January 1, 1995, to the
best of its ability, it has fully accounted to Lectrolarm for all sales and
manufacturing of the Licensed Products and Royalty Bearing Components made
by Ultrak, its Affiliates or any third parties that have manufactured or
sold Licensed Products or Royalty Bearing Components by or on behalf of
Ultrak. Ultrak further represents and warrants that the list of Dome
Products set forth in Exhibit A accurately reflects a complete list of the
current Ultrak products falling within the definition of Dome Products.
Ultrak shall promptly update Exhibit A during the Term upon the occurrence
of any material changes to its Dome Products, and shall promptly Notify
Lectrolarm of any such changes.
(b) Ultrak also represents that from January 1, 1995 through the
Effective Date (i) its sales of Licensed Products and Royalty Bearing
Components have been approximately twenty-six million U.S. Dollars
($26,000,000) and (ii) Ultrak sales of its Dome Products are approximately
93% of Ultrak's total sales of the Licensed Products.
ARTICLE 9 - INDEMNIFICATION
---------------------------
9.1 Ultrak hereby indemnifies Lectrolarm and its Affiliates from and
against any losses, damages, fines, penalties, costs, assessments, awards,
and legal expenses, including attorney's fees, that arise out of or result
from any claims, charges, complaints, causes of actions or judgments
relating to Ultrak's Licensed Products or Royalty Bearing Components or
related by circumstances to the existence of this Agreement or performance
under or in contemplation of it.
ARTICLE 10 - CONSEQUENTIAL DAMAGES
----------------------------------
10.1 IN NO EVENT WILL LECTROLARM BE LIABLE FOR ANY INDIRECT OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT WHETHER OR NOT
LECTROLARM HAD KNOWLEDGE OF ANY SUCH CLAIM IN ADVANCE.
ARTICLE 11 - MISCELLANEOUS
--------------------------
11.1 Nothing in this Agreement shall be deemed or construed as an
admission of liability by either Party with respect to any of the claims or
counterclaims in the Lawsuit.
11.2 Notices. All notices hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, one day after
delivery to a nationally recognized overnight delivery service, charges
prepaid, three days after sent by registered or certified mail, postage
prepaid, or when receipt is confirmed if by facsimile or other telegraphic
means: In the case of Lectrolarm:
Lectrolarm, Inc.
3120 Summer Avenue
Memphis, Tennessee 38112
Facsimile: 901-327-4192
With a copy to:
Gary M. Hoffman, Esq.
Dickstein Shapiro Morin & Oshinsky, LLP
2101 L Street, NW
Washington, D.C. 20037
Facsimile: 202-887-0689
In the case of Ultrak:
Ultrak, Inc.
Attn: General Counsel
1301 Waters Ridge Drive
Lewisville, Texas 75057
Facsimile: 972-353-6492
With a copy to:
George R. Schultz
Schultz & Associates, P.C.
One Lincoln Centre
5400 LBJ Freeway, Suite 525
Dallas, Texas 75240
Facsimile: 972-991-8910
Such addresses may be altered by written notice given in accordance with
this Article 11.2.
11.3 Assignment. With the sale of its business, Ultrak may assign this
Agreement or any rights granted hereunder upon five (5) days prior written
notice to Lectrolarm. Not withstanding this provision, Ultrak may not
assign this Agreement or any rights hereunder to Pelco, Sony, Sensormatic
(or Tyco), Vicon, or Kalatel without the prior written consent of
Lectrolarm. This Agreement shall bind and inure to the benefit of the
respective Parties hereto and their successors and assigns. Lectrolarm may
assign this Agreement or any rights and obligations contemplated herein
upon written notice to Ultrak. Upon any such assignment, the assignee shall
become subject to all of the terms and conditions of this Agreement,
arising from such Agreement and Ultrak shall be released from any liability
or obligation under this Agreement for any events occurring after such
assignment.
11.4 Force Majeure. Any delays in or failures of performance by any
Party under this Agreement shall not be considered a breach of this
Agreement if and to the extent caused by occurrences beyond the reasonable
control of the party affected, including but not limited to: acts of God;
acts, regulations or laws of any government; strikes or other concerted
acts of workers; fires; floods; explosions; riots; wars; rebellions; and
sabotage; and any time for performance hereunder shall be extended by the
actual time of delay caused by such occurrence.
11.5 Relationship of Parties. The Parties hereto are entering into this
Agreement as independent contractors, and nothing herein is intended or
shall be construed to create between the Parties a relationship of
principal and agent, partners, joint venturers or employer and employee. No
Party shall hold itself out to others or seek to bind or commit the other
Party in any manner inconsistent with the foregoing provisions of this
Article.
11.6 Bankruptcy. All rights and licenses granted under or pursuant to
this Agreement by Lectrolarm to Ultrak are, for all purposes of Section
365(n) of Title 11, U.S. Code (the "Bankruptcy Code"), licenses of rights
to "intellectual property" as defined in the Bankruptcy Code. The parties
agree that Ultrak, as a licensee of such rights under this Agreement, shall
retain and may fully exercise all of its rights and elections under the
Bankruptcy Code. If a Bankruptcy Code case is commenced by or against
Lectrolarm and this Agreement is rejected as provided in the Bankruptcy
Code, then Lectrolarm (in any capacity, including debtor-in-possession) and
its successors and assigns (including, without limitation, a Bankruptcy
Code trustee) shall take such steps as are necessary to permit Ultrak to
exercise its rights under this Agreement. All rights, powers and remedies
of Ultrak provided under this Article are in addition to and not in
substitution for any and all other rights, powers and remedies now or
hereafter exiting at law or in equity (including, without limitation, the
Bankruptcy Code) in the even of any such commencement of a bankruptcy
proceeding by or against Lectrolarm. Ultrak, in addition to the rights,
powers and remedies expressly provided herein, shall be entitled to
exercise all other such rights and powers and resort to all other such
remedies as may now or hereafter exist at law or in equity (including the
Bankruptcy Code) in such event.
11.7 Integration. It is the mutual desire and intent of the Parties to
provide certainty as to their future rights and remedies against each other
by defining the extent of their mutual undertakings as provided herein. The
Parties have in this Agreement incorporated all representations,
warranties, covenants, commitments and understandings on which they have
relied in entering into this Agreement and, except as provided for herein,
neither Party has made any covenant or other commitment to the other
concerning its future action. Accordingly, this Agreement constitutes the
entire agreement and understanding between the Parties with respect to the
matters contained herein, and there are no prior oral or written promises,
representations, conditions, provisions or terms related thereto other than
those set forth in this Agreement. The Parties may from time to time during
the term of this Agreement modify any of its provisions by mutual agreement
in writing.
11.8 Other Disputes. Issues or disputes pertaining to parties, products
or processes not specifically included within the terms and provision of
this Agreement are outside the scope of this Agreement.
11.9 Headings. The inclusion of headings in this Agreement is for
convenience only and shall not affect the construction or interpretation
hereof.
11.10 Construction. The Parties agree and acknowledge that this
Agreement is the product of both parties and shall not be construed against
either party.
11.11 Governing Law. The validity and interpretation of this Agreement
and the legal relations of the Parties shall be governed by the laws of the
State of New York. Any disputes arising out of this Agreement shall be
finally settled before the Federal or State courts for the State of New
York in New York City.
11.12 Execution of Agreement in Counterparts. This Agreement may be
executed in two counterparts, and execution by each Party of one of such
counterparts will constitute due execution of this Agreement. Each such
counterpart hereof shall be deemed to be an original instrument, and all
such counterparts together shall constitute but one agreement.
IN WITNESS WHEREOF, the Parties hereto caused the Agreement to be duly
executed by their respective authorized officers as of the day first
written above.
LECTROLARM CUSTOM SYSTEMS, INC. ULTRAK, INC.
By: /s/ W.V. Smith By: /s/ Chris T. Sharng
-------------------------------- --------------------------------
Its: President Its: Senior Vice President
and Chief Financial Officer
----------------------------- ----------------------------
Date: 12/6/02 Date: December 6, 2002
---------------------------- ----------------------------
EXHIBIT A
---------
Material
- ---------------------------------------------------------------------------
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KD6SV1N1 KD6, KD6 PKG VICON REP, EX48 SM
KD6QR4NH KD6 PKG IX470 NTSC RUGGEDIZE CL
KD6SD2N1 ULTRADOME IX47 DC SMK WHT TRM S
KD6QD2N4 KD6, PKG KD6 DC NTSC EX480 SMK/
KD6QB1N4 KD6, PKG KD6 BLK PEN EX480 SMK/
KD6QW1N1 KD6 UD WTHR IX470 SMK LNR 24V H
KD6SP1N1 KD6 UD IX47 NTSC PEND SMK/BLK T
KD6SW4N1 KD6 UD WTHR CLR BTM LNR IX47 24
KD6QR1NH KD6 PKG RUG SMK W/IX470 NTSC HT
KD6SD1N1 ULTRADOME W/IX47 DRCLN TP SMBTM
KD6SD4N1 KD6 UD IX47 NTSC DC CLR DM BLK
KD6SP2N1 KD6 IX47 NTSC IND PNDT SMK WH T
KD6QR1NJ KD6, KD6 PKG RUG IX470 NTSC SMK
KD6SW1N1 KD6 UD WTHR IX47 SMK LNR 24 V H
KD6QW4N4 KD6, PKG KD6 IX470 NTSC WX, CLR
KDZ8HPSN2 MV, KD6Z PKG 8" PENDANT SMK 24V
KD6SR1NF KD6, KD6 PKG EX48 NTSC RUGGED S
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KD6QD4N1 KD6 UD IX470 NTSC DR CLN CLR/BL
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KD6SD4N4 KD6, KD6 PKG DC CLR/BLK EX48 NT
KD6SD2N4 KD6, KD6 PKG DC SMK/WHT IX47 NT
KD6QW1N4 KD6 PKG IX470 NTSC WX SMOKED CA
KD6QR4NG KD6, KD6 PKG RUG EX480 NTSC CLR
KD6QD5N4 KD6 PKG IX470 DC CLR/WHT NTSC C
KD6QW4P1 KD6, KD6 PKG EX480 PAL CLR WX S
KD6SD5N1 ULTRDM FCBIX47 DC CLR DM WHTRM
KD6QR4NF KD6, KD6 PKG IX470 RUGGED CLR W
KD6SR1NJ KD6, KD6 PKG RUG IX47 NTSC SMK
KD6QR4NJ KD6, KD6 PKG RUG EX480 NTSC CLR
KD6SP4N1 KD6 UD IX47 NTSC PEN CLR BLK TR
KD6QP2N4 KD6, KD6 PKG WHT PEN 480 NTSC S
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KD6QP2N1 KD6 UD IX470 NTSC PEND SMK/WHT
KDZ8HWTN2 MV, KD6Z PKG WEATHER DOME NTSC
KDZ8HWSN2 MV, KD6Z PKG WEATHER DOME NTSC
KD6SR4NH KD6, KD6 PKG IX47 NTSC RUGGED C
KD6SE1NA KD6 PKG IX47 SMK PRES NTSC 14 P
KD6QP1N1 KD6 UD IX470 NTSC PEND SMK/BLK
KD6SP1N4 KD6, KD6 PEND WHT IX47 NTSC SMK
KD6SDCN1 KD6 UD IX47 NTSC DC HLF-GLD/GLD
KD6SW4N4 KD6, KD6 PKG WX DOME EX48 CLEAR
KDZ6HD2N2 MV, KD6Z PKG 6" DC SMK/WHT 24VA
KD6QE1NA KD6 PKG IX470 SMK PRES NTSC 14
KD6SR1NH KD6, KD6 PKG RUGGED IX47 NTSC S
KD6QP5N1 KD6 UD IX470 NTSC PEND CLR/WHT
KD6SP2N4 KD6, KD6 PKG IX47 WHT PEND SMK/
KD6SR4N1 KD6, KD6 PKG IX47 RUGGEDIZED CL
KDZ6HD1N2 MV, KD6Z 6" DROP CEIL SMK/BLK 2
KD6SW1N4 KD6, KD6 PKG IX47 WX SMK NTSC C
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KD6SR1N1 KD6, KD6 PKG RUGGEDIZED EX48 NT
KD6QDCN1 KD6 IX470 NTSC DC HLF-GLD/GLD S
KD6QP1N4 KD6, KD6 PKG IX470 NTSC WHT PEN
KD6QW4NA KD6, PKG KD6 IX470 NTSC WX, CLR
KD6QD1N1 KD6 UD IX470 NTSC DC SMK/BLK TR
KD6SR4NJ KD6, KD6 PKG RUG EX48 NTSC CLR
KD6SD5N4 KD6, KD6 PKG DC W/EX47 NTSC CLR
KD6SP4N4 KD6, KD6 PKG PEN EX48 NTSC CLR/
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KD6SP5N1 KD6 IX47 NTSC PEND CLR/WH TR RN
KDZ6HD4N2 MV, KD6Z PKG 6" DROP CLR/BLK 24
KDZ6HD2N1 MV, KD6Z PKG 6" DC SMK/WHT 12VD
KD6QS4N4 KD6, KD6 PKG SOFFIT WX CLEAR EX
KDZ6HD1N1 MV, KD6Z 6" DROP CEIL SMK/BLK 1
KDZ8HPTN2 MV, KD6Z PKG 8" PENDANT CLEAR 2
KD6QDNN1 KD6, KD6 IN 9" DC TOP CAN, RUGG
KD6QS1N1 KD6, KD6 PKG SOFFIT WX SMK EX48
KDZ8HPSN1 MV, KD6Z PKG 8" PENDANT SMK 12V
KD6QW4P4 KD6, KD6 PKG CLR WX EX480 PAL C
KDZ8FWS00 MV, KD6Z PKG FXD CAMERA WX DOME
KD6QD5N1 SS4, KD6 PKG EX480 NTSC DC CLR/
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KD6SP5N4 KD6, KD6 PKG IX47 PEND CLR/WHT
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KDZ8HPTN1 MV, KD6Z PKG 8" PENDANT CLEAR 1
KD6RDEM1 DEMO, KD6 RUG NTSC NO CAMERA/CA
Exhibit 99.7
December 5, 2002
Victoria and Eagle Strategic Fund
c/o Victoria and Eagle Asset Management S.A.
via Nassa 33
Lugano, Switzerland
Niklaus F. Zenger
Kanalstrasse 31
Glattbrugg, Switzerland
George K. Broady
c/o Ultrak, Inc.
1301 Waters Ridge Drive
Lewisville, Texas 75057
Myriam Hernandez
Rossliweg 12
Oberbipp
Switzerland
Ladies and Gentlemen:
Reference is made to the Voting Agreements, dated as of August 8, 2002
(the "Voting Agreement"), by and among Honeywell International Inc., a
Delaware corporation ("Honeywell") and the individuals and entities listed
on each Schedule A thereto (collectively, the "Stockholders"). All
capitalized terms used herein but not defined herein shall have the meaning
given them in the Voting Agreement. As you know, Honeywell and the Sellers
amended the Purchase Agreement by a letter agreement dated November 26,
2002 amending Section 9.4(a)(iv) of the Asset Purchase Agreement to provide
that Honeywell or the Sellers may terminate the Asset Purchase Agreement if
the Closing has not taken place on or before December 31, 2002.
Section 7.3(w) of the Asset Purchase Agreement requires, among other
things, that the Sellers deliver to Honeywell an executed legal
non-infringement opinion in form and substance satisfactory to Honeywell in
Honeywell's reasonable discretion with respect to U.S. Patent 4,974,088
(the "Lectrolarm Patent") held by Lectrolarm Custom Systems, Inc.
("Lectrolarm"). The Sellers have not been able to deliver an opinion
satisfactory to Honeywell with respect to the Lectrolarm Patent. As a
result, (i) the Sellers have entered into a license agreement with
Lectrolarm with respect to the Lectrolarm Patent (the "Lectrolarm License")
on terms acceptable to Honeywell and (ii) the Sellers and Honeywell have
entered into an Amendment to the Purchase Agreement dated December 5,
2002 (such Amendment is attached hereto as Exhibit A) to, among other
things, remove the closing condition relating to the delivery of a
non-infringement opinion relating to the Lectrolarm Patent and in lieu
thereof establishing an additional holdback of $2,215,000, as provided in
the attached Amendment. By executing this letter agreement below, each
Stockholder acknowledges and agrees that such Stockholder's Shares are and
continue to be subject to the Voting Agreement and that all references to
the Asset Purchase Agreement in the Voting Agreement shall mean the Asset
Purchase Agreement as amended to date, including the attached Amendment.
Except as expressly amended herein, the Voting Agreement shall
continue to be, and shall remain, in full force and effect. This letter
agreement may be executed in multiple counterparts which, taken together,
shall constitute one and the same agreement.
Please indicate your agreement to the matters stated herein by signing
and returning this letter.
Very truly yours,
HONEYWELL INTERNATIONAL INC.
By: /s/ Roger Fradin
---------------------------------
Name: Roger Fradin
Title: President, ACP
Consented to and acknowledged:
VICTORIA AND EAGLE STRATEGIC FUND
By: /s/ Fabio Conti
---------------------------------
Name: Fabio Conti
Title: Director
/s/ Niklaus F. Zenger
------------------------------------
NIKLAUS F. ZENGER
/s/ George K. Broady
------------------------------------
GEORGE K. BROADY
/s/ Myriam Hernandez
------------------------------------
MYRIAM HERNANDEZ