STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of August 3, 2000 (the "Agreement"),
between Burns International Services Corporation, a Delaware corporation (the
"Grantor"), and Securitas AB, a joint stock company organized under the laws of
Sweden (the "Grantee").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Grantor, the Grantee and Securitas Acquisition Corporation, a
Delaware corporation and an indirect, wholly owned subsidiary of the Grantee
("Purchaser"), are entering into an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"), which provides for, upon the terms
and subject to the conditions set forth therein, (i) the commencement by
Purchaser of a tender offer (the "Offer") for all of the issued and outstanding
Common Stock, par value $.01 per share of the Company (the "Company Common
Shares") including the associated rights to purchase Series A Participating
Cumulative Preferred Stock, at a price per share equal to the Per Share Amount
(as defined in the Merger Agreement), and (ii) the subsequent merger of
Purchaser with and into the Grantor (the "Merger");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, the Grantee and Purchaser have requested that the Grantor grant to
the Grantee an option to purchase up to the full number of Option Shares (as
defined below), upon the terms and subject to the conditions herein; and
WHEREAS, in order to induce the Grantee and Purchaser to enter into the
Merger Agreement, the Grantor is willing to grant the Grantee the requested
option.
Terms used but not otherwise defined in this Agreement have the meanings
ascribed to such terms in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby, the
Grantee and the Grantor hereby agree as follows:
SECTION 1. The Option; Exercise; Adjustments; Payment of Spread.
(a) Subject to the other terms and conditions set forth herein, the
Grantor hereby grants to the Grantee an irrevocable option (the "Option") to
purchase up to the number of Company Common Shares which represents 19.9% of
all Company Common Shares which are issued and outstanding immediately prior to
the exercise of the Option (the "Option Shares"), at a cash purchase price per
Share equal to the Per Share Amount (the "Purchase Price"). The Option may be
exercised by the Grantee, in whole or in part, at any time, or from time to
time, following the occurrence of an event described in Section 2(d) hereof,
and prior to the termination of the Option in accordance with the terms of this
Agreement.
(b) In the event the Grantee wishes to exercise the Option, the Grantee
shall send a written notice to the Grantor (the "Stock Exercise Notice")
specifying a date (subject to the HSR Act, as defined below), not later than
ten (10) business days and not earlier than three (3) business days following
the date such notice is given for the closing of such purchase; provided that
the Closing Date may be
postponed in accordance with Section 3(a). In the event of any change in the
number of issued and outstanding Company Common Shares by reason of any stock
dividend, stock split, split-up, recapitalization, merger or other change in
the corporate or capital structure of the Grantor, the number of Shares subject
to this Option and the purchase price per Share shall be appropriately adjusted
to restore the Grantee to its rights hereunder, including its right to purchase
Shares representing 19.9% of the Company Common Shares which are issued and
outstanding immediately prior to the exercise of the Option.
(c) If at any time the Option is then exercisable pursuant to the terms of
Section 1(a) hereof, the Grantee may elect, in lieu of exercising the Option to
purchase Shares provided in Section 1(a) hereof, to send a written notice to
the Grantor (the "Cash Exercise Notice") specifying a date not later than
twenty (20) business days and not earlier than ten (10) business days following
the date such notice is given on which date the Grantor shall pay to the
Grantee an amount in cash equal to the Spread (as hereinafter defined)
multiplied by all or such portion of the Shares subject to the Option as the
Grantee shall specify. As used herein "Spread" shall mean the excess, if any,
over the Purchase Price of the higher of (x) if applicable, the highest price
per Company Common Share paid or proposed to be paid by any person pursuant to
a Takeover Proposal giving rise to an event described in Section 2(d) hereof
(the "Alternative Purchase Price") or (y) the average of the closing prices of
the Company Common Shares as of the end of the regular session on the NYSE
Composite Tape for the five (5) trading days immediately prior to the date of
the Cash Exercise Notice (the "Closing Price"). If the Alternative Purchase
Price includes any property other than cash, the Alternative Purchase Price
shall be the sum of (i) the fixed cash amount, if any, included in the
Alternative Purchase Price plus (ii) the fair market value of such property
other than cash included in the Alternative Purchase Price. If such other
property consists of securities with an existing public trading market, the
average of the closing prices (or the average of the closing bid and asked
prices if closing prices are unavailable) for such securities in their
principal public trading market on the five trading days ending five days prior
to the date of the Cash Exercise Notice shall be deemed to equal the fair
market value of such property. If such other property consists of something
other than cash or securities with an existing public trading market and, as of
the payment date for the Spread, agreement on the value of such other property
has not been reached, the Alternative Purchase Price shall be deemed to equal
the Closing Price. Upon exercise of the Grantee's right to receive cash
pursuant to this Section 1(c), the obligations of the Grantor to deliver Shares
pursuant to Section 3 shall be terminated with respect to such number of Shares
for which the Grantee shall have elected to be paid the Spread. As used in this
Agreement, "person" shall have the meaning specified in Sections 3(a)(9) and
13(d)(3) of the Securities Exchange Act of 1934 (the "Exchange Act").
Notwithstanding anything else contained in this Agreement, the Grantor shall
not be required to comply with the foregoing provisions of this Section 1(c) if
such compliance would be restricted by the terms of the Amended and Restated
Credit Agreement dated as of June 30, 1998 among the Grantor, the Lenders
listed therein, Canadian Imperial Bank of Commerce, as documentation agent,
NationsBank, N.A., as syndication agent, and Bankers Trust Company, as
administrative agent, as amended; provided that, at the request of the Grantee,
the Grantor will use its best efforts to request such lenders to waive such
restrictions. Pending a determination from the lenders regarding a request from
Grantor for such a waiver, all of Grantees rights under this Section 1(c) shall
survive.
SECTION 2. Conditions to Delivery of Shares. The Grantor's obligation to
deliver Shares upon exercise of the Option is subject only to the conditions
that:
(a) No preliminary or permanent injunction or other order issued by any
federal or state court of competent jurisdiction in the United States
prohibiting the delivery of the Shares shall be in effect; and
(b) Any applicable waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 (the "HSR Act") shall have expired or been terminated;
and
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(c) Any approvals and consents required to be obtained prior to the
delivery of the Shares under applicable foreign antitrust or competition laws
shall have been obtained and be in full force and effect; and
(d) (i) The Merger Agreement shall have become terminable under
circumstances which would entitle the Grantee to receive the Termination Fee
pursuant to the first sentence of Section 8.2(b) of the Merger Agreement or
(ii) the Grantee shall have become entitled to receive the Termination Fee
pursuant to the second sentence of Section 8.2(b) of the Merger Agreement.
SECTION 3. The Closing.
(a) Any closing hereunder shall take place on the date specified by the
Grantee in its Stock Exercise Notice or Cash Exercise Notice, as the case may
be, at 9:00 a.m., local time, at the offices of Dunnington, Bartholow & Miller
LLP, 666 Third Avenue, New York, New York 10017, or, if the conditions set
forth in Section 2(a), (b) or (c) have not then been satisfied, on the second
business day following the satisfaction of such conditions, or at such other
time and place as the parties hereto may agree (the "Closing Date"). On the
Closing Date, (i) in the event of a closing pursuant to Section 1(b) hereof,
the Grantor will deliver to the Grantee a certificate or certificates,
representing the Shares in the denominations designated by the Grantee in its
Stock Exercise Notice and the Grantee will purchase such Shares from the
Grantor at the price per Share equal to the Purchase Price or (ii) in the event
of a closing pursuant to Section 1(c) the Grantor will deliver to the Grantee
cash in an amount determined pursuant to Section 1(c) hereof. Any payment made
by the Grantee to the Grantor, or by the Grantor to the Grantee, pursuant to
this Agreement shall be made by wire transfer of federal funds to a bank
designated by the party receiving such funds.
(b) The certificates representing the Shares shall bear an appropriate
legend relating to the fact that such Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act").
SECTION 4. Representations and Warranties of the Grantor. The Grantor
represents and warrants to the Grantee that the Grantor has taken all necessary
corporate action to authorize and reserve the Shares issuable upon exercise of
the Option and the Shares, when issued and delivered by the Grantor upon
exercise of the Option and paid for by the Grantee as contemplated hereby, will
be duly authorized, validly issued, fully paid and non-assessable and free of
preemptive rights.
SECTION 5. Representations and Warranties of the Grantee. The Grantee
represents and warrants to the Grantor that (a) the execution and delivery of
this Agreement by the Grantee and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Grantee and this Agreement has been duly executed and
delivered by a duly authorized officer of the Grantee and constitutes a valid
and binding obligation of the Grantee enforceable in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws and except that the availability of equitable remedies,
including specific performance, is subject to the discretion of the court
before which any proceeding for such remedy may be brought; and (b) the Grantee
is acquiring the Option and, if and when it exercises the Option, will be
acquiring the Shares issuable upon the exercise thereof for its own account for
investment and not with a view to distribution or resale in any manner which
would be in violation of the Securities Act.
SECTION 6. Listing of Shares; Filings; Governmental Consents. Subject to
applicable law and the rules and regulations of the New York Stock Exchange,
Inc. (the "NYSE"), the Grantor will
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promptly file an application to list the Shares on the NYSE and will use its
reasonable best efforts to obtain approval of such listing and to effect all
necessary filings by the Grantor under the HSR Act and obtain all approvals and
consents required under applicable foreign antitrust and competition laws;
provided, however, that if the Grantor is unable to effect such listing on the
NYSE by the Closing Date, the Grantor will nevertheless be obligated to deliver
the Shares upon the Closing Date. Each of the parties hereto will use its
reasonable best efforts to obtain consents of all third parties and
governmental authorities, if any, necessary to the consummation of the
transactions contemplated.
SECTION 7. Registration Rights.
(a) In the event that the Grantee shall desire to sell any of the Option
Shares, and such sale requires, in the written opinion of counsel to the
Grantee, which opinion shall be reasonably satisfactory to the Grantor and its
counsel, registration of such Option Shares under the Securities Act, the
Grantor will cooperate with the Grantee and any underwriters in registering
such Option Shares for resale, including, without limitation, promptly filing a
registration statement which complies with the requirements of applicable
federal and state securities laws, and entering into an underwriting agreement
with such underwriters upon such terms and conditions as are customarily
contained in underwriting agreements with respect to secondary distributions;
provided that the Grantor shall not be required to have declared effective more
than two registration statements hereunder and shall be entitled to delay the
filing or effectiveness of any registration statement for up to 120 days if the
offering would, in the judgment of the Board of Directors of the Grantor,
require premature disclosure of any material corporate development or material
transaction involving the Grantor or interfere with any previously planned
transaction by the Company. Grantee shall use its reasonable efforts to cause,
and shall use its reasonable efforts to cause any underwriters of any sale or
other disposition to cause, any sale or other disposition pursuant to such
registration statement to be effected on a widely distributed basis so that
upon consummation thereof no purchaser or transferee will own beneficially more
than 3% of the then outstanding voting power of Grantor.
(b) If the Company Common Shares are registered pursuant to the provisions
of this Section 7, the Grantor agrees (i) to furnish copies of the registration
statement and the prospectus relating to the Shares covered thereby in such
numbers as the Grantee may from time to time reasonably request and (ii) if any
event shall occur as a result of which it becomes necessary to amend or
supplement any registration statement or prospectus, to prepare and file under
the applicable securities laws such amendments and supplements as may be
necessary to keep available for at least 90 days a prospectus covering the
Option Shares meeting the requirements of such securities laws, and to furnish
the Grantee such numbers of copies of the registration statement and prospectus
as amended or supplemented as may reasonably be requested. The Grantee shall
bear the cost of the registration, including, but not limited to, all
registration and filing fees, printing expenses, and fees and disbursements of
counsel and accountants for the Grantee, and the underwriting fees and selling
commissions applicable to the Company Common Shares sold by the Grantee, except
that the Grantor shall pay the fees and disbursements of its counsel and
accountants. The Grantor shall indemnify and hold harmless (i) the Grantee, its
affiliates and its officers and directors and (ii) each underwriter and each
person who controls any underwriter within the meaning of the Securities Act or
the Exchange Act (collectively, the "Underwriters") ((i) and (ii) being
referred to as "Indemnified Parties") against any losses, claims, damages,
liabilities or expenses, to which the Indemnified Parties may become subject,
insofar as such losses, claims, damages, liabilities (or actions in respect
thereof) and expenses arise out of or are based upon any untrue statement or
alleged
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untrue statement of any material fact contained or incorporated by reference in
any registration statement filed pursuant to this paragraph, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the Grantor will not be liable in any
such case to the extent that any such loss, liability, claim, damage or expense
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any such documents in reliance upon and
in conformity with written information furnished to the Grantor by any
Indemnified Party expressly for use or incorporation by reference therein.
(c) The Grantee shall indemnify and hold harmless the Grantor, its
affiliates, officers and directors and the Underwriters against any losses,
claims, damages, liabilities or expenses to which the Grantor, its affiliates
and its officers and directors or the Underwriters may become subject, insofar
as such losses, claims, damages, liabilities (or actions in respect thereof)
and expenses arise out of or are based upon any untrue statement of any
material fact contained or incorporated by reference in any registration
statement filed pursuant to this Section, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Grantor by the
Grantee specifically for use or incorporation by reference therein.
SECTION 8. Other Restrictions.
(a) The Option Shares may not be sold, assigned, transferred, or otherwise
disposed of by Grantee or any of its Affiliates except (i) in an underwritten
public offering as provided in Section 7, (ii) to any purchaser who would not,
to the knowledge of the Grantee after reasonable due inquiry, immediately
following such sale, assignment, transfer or disposal, beneficially own more
than 3% of the then outstanding voting power of the Grantor or (iii) pursuant
to a bona fide third party tender offer or exchange offer (A) that has been
approved or recommended by a majority of the members of the Board of Directors
(which majority shall include a majority of directors who were directors as of
the date hereof) or (B) if in the good faith judgment of the Grantee there is a
reasonable possibility it would be, as a result of not tendering or exchanging,
relegated to different consideration than would be available to those
shareholders who did tender or exchange, taking into account any provisions
thereof with respect to proration and any proposed second step or back-end
transaction, provided in the case of this clause (B) that all conditions to
such tender or exchange offer (other than the minimum tender or exchange
condition) could reasonably be expected to be satisfied or waived at the
scheduled expiration date for such offer even if the Grantee did not tender.
(b) (x) If Grantee desires to transfer for value any or all of its Option
Shares to any Person, Grantee shall, not less than 30 days prior to the
anticipated closing of such transfer, provide the Grantor with written notice
(an "Offer Notice") that the Grantee desires to effect such a transfer. The
Offer Notice shall identify the number of Option Shares proposed to be
transferred (the "Offered Shares"), the consideration at which a transfer is
proposed to be made and all other material terms and conditions of the
transfer.
(y) The giving of an Offer Notice to the Grantor by the Grantee shall
constitute an offer (the "Offer") by the Grantee to sell to the Grantor
all such Offered Shares at the same price per share and for consideration
consisting of (I) cash equal to the amount of cash proposed to be paid by
the proposed transferee or (II) cash or non-cash consideration, if any,
having an equivalent value with the non-cash consideration proposed to be
paid by the proposed transferee. The determination of equivalent value
required by the preceding sentence shall be made by a mutually agreed upon
investment banking firm of national standing, whose fees shall be split
equally between the Grantor and the Grantee. The Offer shall be
irrevocable for thirty (30) days after receipt of such Offer Notice by the
Grantor (the "Offer Period"). The Grantor shall have the right to accept
such Offer in whole but not in part by written notice delivered to the
Grantee prior to the expiration of the Offer Period. If the Grantor
accepts the Offer, the Grantee shall transfer
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all such Offered Shares (free of all liens and encumbrances) to the
Grantor within 20 days after the date such Offer is accepted by the
Grantor, against delivery by the Grantor of the consideration payable to
the Grantee as set forth in the Offer Notice; provided that if the
transfer of such Offered Shares is subject to the expiration of any
applicable statutory waiting period, the time period during which such
transfer may be consummated shall be extended until the expiration of 5
days after such waiting period shall have expired.
(z) If the Grantor declines to accept the Offer or does not respond
to the Grantee prior to the expiration of the Offer Period, the Grantee
may transfer all such Offered Shares to the proposed transferee in
accordance with the terms of such transfer set forth in the Offer Notice;
provided that such transfer must occur no later than 75 days after the
date the Offer Notice was received by the Grantor or five days after the
expiration of any statutory waiting period applicable to such transfer,
whichever is later. If the Grantee does not consummate the transfer of
such Offered Shares in accordance with the time limitations set forth
above, the Grantee may not sell any such Offered Shares without repeating
the procedures set forth in this Section 8(b).
(c) In connection with any vote or action by written consent of the
shareholders of the Grantor relating to any matter, Grantee shall vote or act
by written consent with respect to (and to cause each of its Affiliates that
beneficially own Shares to vote or act by written consent with respect to) any
Option Shares beneficially owned by it, at Grantee's option, either (i)
proportionately on the same basis as the other holders of Shares so vote or
(ii) as recommended by the Board of Directors; provided that the Grantee shall
be entitled to vote its Option Shares in its discretion (and not in such
proportion or as so recommended) with respect to any transaction submitted to
holders of Shares pursuant to which Option Shares beneficially owned by Grantee
or any of its Affiliates will not be entitled to receive (or will not be
permitted to elect to receive on an equitable basis with the Shares held by all
other shareholders), in such transaction, the same consideration as Shares held
by all other shareholders of the Grantor.
(d) The Grantee covenants and agrees with the Grantor that, following the
date that the Option becomes exercisable, it shall not, and shall cause each of
its subsidiaries not to, directly or indirectly, acquire, or agree to acquire,
by purchase or otherwise, beneficial ownership of any Shares, other than
pursuant to any rights Grantee may have under the Option, the Merger Agreement,
and the Stockholders' Agreement, or by way of stock dividends, stock
reclassifications or other distributions or offerings made available to holders
of Shares generally.
SECTION 9. Specific Performance. The Grantor acknowledges that if the
Grantor fails to perform any of its obligations under this Agreement, immediate
and irreparable harm or injury would be caused to the Grantee for which money
damages would not be an adequate remedy. In such event, the Grantor agrees that
the Grantee shall have the right, in addition to any other rights it may have,
to specific performance of this Agreement. Accordingly, if the Grantee should
institute an action or proceeding seeking specific enforcement of the
provisions hereof, the Grantor hereby waives the claim or defense that the
Grantee has an adequate remedy at law and hereby agrees not to assert in any
such action or proceeding the claim or defense that such a remedy at law
exists. The Grantor further agrees to waive any requirements for the securing
or posting of any bond in connection with obtaining any such equitable relief.
SECTION 10. Notice. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made (i) as of the date delivered or sent by facsimile if delivered
personally or by facsimile, and (ii) on the third business day after deposit in
the U.S. mail, if mailed by registered or certified mail (postage prepaid,
return receipt requested), in each case to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice, except that notices of changes of address shall be effective upon
receipt):
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(a) If to the Grantee:
Securitas AB
Berkshire House
Feltham Corporate Centre
3 Maple Way
Feltham
Middlesex TW13 7AW
United Kingdom
Attention: President
Facsimile: +44 208 867 0007
With a copy to:
Dunnington, Bartholow & Miller LLP
Promenade Office Park
4165 East Thousand Oaks Boulevard
Suite 101
Westlake Village, CA 91362-3810
Attention: Frederick W. London, Esq.
Facsimile: (805) 374-1132
(b) If to the Grantor:
Burns International Services Corporation
200 S. Michigan Avenue
Chicago, IL 60604
Attention: General Counsel
Facsimile: (312) 322-8509
With a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Attention: Peter R. Douglas, Esq.
Facsimile: (212) 450-3336
SECTION 11. Expenses. Except as otherwise expressly set forth herein or in
the Merger Agreement, all fees, costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses.
SECTION 12. Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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SECTION 13. Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the maximum extent
possible.
SECTION 14. Entire Agreement; No Third-Party Beneficiaries. This Agreement
and the Merger Agreement (including the other documents referred to therein)
constitute the entire agreement and supersede any and all other prior
agreements and undertakings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof, and this Agreement is not
intended to confer upon any other person any rights or remedies hereunder.
SECTION 15. Assignment. Neither this Agreement, nor any right or
obligation hereunder, shall be assigned by operation of law or otherwise.
SECTION 16. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed entirely within that State.
SECTION 17. Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 18. Waiver. Any party hereto may (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties of the
other parties hereto contained herein or in any document delivered pursuant
hereto and (c) waive compliance by the other parties hereto with any of their
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only as against such
party and only if set forth in an instrument in writing signed by such party.
The failure of any party hereto to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights.
SECTION 19. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but both of which
shall constitute one and the same agreement.
SECTION 20. Termination. The right to exercise the Option granted pursuant
to this Agreement shall, subject to the provisions of Section 3(a), terminate
at the earlier of (i) the Effective Time and (ii) thirty (30) days after the
date on which an event described in Section 2(d) hereof occurs.
All representations and warranties contained in this Agreement shall
survive delivery of and payment for the Shares.
SECTION 21. Profit Limitation. Notwithstanding any other provision of this
Agreement, in no event shall the Grantee's Total Profit (as defined below)
exceed $18 million and, if it otherwise would exceed such amount, the Grantee,
at it sole election, shall either (a) reduce the number of Company Common
Shares required to be delivered by the Grantor pursuant to the Stock Exercise
Notice, (b) deliver to the Grantor for cancellation Shares previously purchased
by the Grantee, (c) reduce the cash payable to the Grantee pursuant to Section
1(c) hereof, (d) pay cash or other consideration to the Grantor or (e)
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undertake any combination thereof, so that the Grantee's Total Profit shall not
exceed $18 million after taking into account the foregoing actions.
Notwithstanding any other provision of this Agreement, the Option may not
be exercised for a number of Shares as would, as of the date of the Stock
Exercise Notice, result in a Notional Total Profit (as defined below) of more
than $18 million and, if exercise of the Option otherwise would exceed such
amount, the Grantee, at its discretion, may increase the Purchase Price for
that number of Shares set forth in the Stock Exercise Notice so that the
Notional Total Profit shall not exceed $18 million; provided, that nothing in
this sentence shall restrict any exercise of the Option permitted hereby on any
subsequent date at the Purchase Price set forth in Section 1(a) hereof.
As used herein, the term "Total Profit" shall mean the aggregate amount
(before taxes) of the following: (i) the amount of cash received by the Grantee
with respect to the Termination Fee, Expenses and pursuant to Section 1(c )
hereof and (ii) (x) the net cash amounts received by the Grantee from any sale
of Shares (or any other securities into which such Shares are converted or
exchanged) to any person unaffiliated with the Grantee within one year after
the Closing Date, less (y) the Grantee's purchase price for such Shares.
As used herein, the term "Notional Total Profit" with respect to any
number of Shares as to which the Grantee may propose to exercise the Option
shall be the Total Profit determined as of the date of the Stock Exercise
Notice assuming that the Option were exercised on such date for such number of
Shares and assuming that such Shares, together with all other Shares held by
the Grantee and its affiliates as of such date, were sold for cash at the
closing market price for the Company Common Shares as of the end of the regular
session on the NYSE Composite Tape on the preceding trading day (less customary
brokerage commissions).
SECTION 22. Public Announcements. So long as this Agreement is in effect,
the Grantor and the Grantee shall consult with each other before issuing any
press release or otherwise making any public statements with respect to this
Agreement and the transaction contemplated hereby and shall not issue, or
permit their affiliates to issue, any such press release or make any such
public statement before such consultation, except as may be required by law, or
by any national securities exchange or an interdealer quotation system
designated by the National Association of Securities Dealers, Inc.
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IN WITNESS WHEREOF, the Grantor and the Grantee have caused this Agreement
to be executed as of the date first written above.
BURNS INTERNATIONAL SERVICES
CORPORATION
By:
-------------------------------
Name:
Title:
SECURITAS AB
By:
-------------------------------
Name:
Title:
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