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PROTECTION ONE ALARM MONITORING, INC.
AND
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
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$350,000,000
8 1/8% Senior Subordinated Notes due 2009
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PLACEMENT AGREEMENT
Dated December 16, 1998
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MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
FIRST UNION CAPITAL MARKETS, a division of Wheat First Securities, Inc.
NATIONSBANC MONTGOMERY SECURITIES LLC
TD SECURITIES (USA) INC.
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PROTECTION ONE ALARM MONITORING, INC.
$350,000,000 Principal Amount of
8 1/8% Senior Subordinated Notes due 2009
PLACEMENT AGREEMENT
December 16, 1998
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC
FIRST UNION CAPITAL MARKETS,
a division of Wheat First Securities, Inc.
NATIONSBANC MONTGOMERY SECURITIES LLC
TD SECURITIES (USA) INC.
c\o Morgan Stanley & Co. Incorporated.
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
Protection One Alarm Monitoring, Inc. (the "Company") proposes to
issue and sell to Morgan Stanley & Co. Incorporated, Chase Securities Inc.,
First Union Capital Markets, a division of Wheat First Securities, Inc.,
Nationsbanc Montgomery Securities LLC and TD Securities (USA) Inc.
(collectively, the "Placement Agents") an aggregate of $350,000,000 in
aggregate principal amount of 8 1/8% Senior Subordinated Notes due 2009 (the
"Initial Notes"), subject to the terms and conditions set forth herein. The
Initial Notes will be issued pursuant to an Indenture (the "Indenture"), to
be dated the Closing Date (as defined), among the Company, the Guarantors (as
defined) and The Bank of New York, as trustee (the "Trustee"). The Notes (as
defined) will be fully and unconditionally guaranteed (the "Guarantees") as
to payment of principal, interest, and premium, if any, on an unsecured
senior subordinated basis, jointly and severally, by each entity listed on
Exhibit A hereto (collectively, the "Guarantors"). Capitalized terms used
herein and not otherwise defined shall have the meanings assigned to such
terms in the Indenture.
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The net proceeds to the Company from the sale to the Placement
Agents of the Initial Notes (the "Proceeds") will be used by the Company: (i)
to repay a portion of the Senior Credit Facility (as defined) and (ii) for
general purposes and working capital.
1. ISSUANCE OF SECURITIES. The Company proposes, upon the terms
and subject to the conditions set forth herein, to issue and sell to the
Placement Agents an aggregate of $350,000,000 in aggregate principal amount
of Initial Notes. The Initial Notes and the Exchange Notes (as defined)
issuable in exchange therefor are collectively referred to herein as the
"Notes."
Upon original issuance thereof, and until such time as the same is
no longer required under the applicable requirements of the Securities Act of
1933, as amended (the "Act"), the Initial Notes (and all securities issued in
exchange therefor or in substitution thereof) shall bear the following legend:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501 (a)(1), (2), (3) OR
(7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED
INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE
144(k) UNDER THE SECURITIES ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS
NOTE, RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE), AND, IF SUCH TRANSFER IS IN RESPECT OF AN
AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TOT HE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
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AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME PERIOD REFERRED
TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO
THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND
THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER
OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
2. OFFERING. The Initial Notes will be offered and sold to the
Placement Agents pursuant to an exemption from the registration requirements
under the Act. The Company has prepared a preliminary offering memorandum,
dated December 10, 1998 (the "Preliminary Offering Memorandum"), and a final
offering memorandum, dated December 16, 1998 (the "Offering Memorandum"),
relating to the Company, the Guarantors and their respective subsidiaries and
the Initial Notes.
The Placement Agents have advised the Company that the Placement
Agents will make offers (the "Exempt Resales") of the Initial Notes on the
terms set forth in the Offering Memorandum, as amended or supplemented,
solely to persons whom the Placement Agents reasonably believe to be (i) in
the case of offers inside the United States, "qualified institutional
buyers," as defined in Rule 144A under the Act ("QIBs") and (ii) in the case
of offers outside the United States, to persons other than U.S. persons
("foreign purchasers," which term shall include dealers or other professional
fiduciaries in the United States acting on a discretionary basis for foreign
beneficial owners (other than an estate or trust)) in reliance upon
Regulation S under the Securities Act that, in each case, in purchasing such
Initial Notes are deemed to have represented and agreed as provided in the
Offering Memorandum under the caption "Transfer Restrictions". The QIBs and
the foreign purchasers are referred to herein as the "Eligible Purchasers."
The Placement Agents will offer the Initial Notes to such Eligible Purchasers
initially at a price equal to 100% of the principal amount thereof. Such
price may be changed at any time without notice.
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Holders (including subsequent transferees) of Initial Notes will
have the registration rights set forth in the registration rights agreement
relating thereto (the "Registration Rights Agreement"), to be dated the
Closing Date. Pursuant to the Registration Rights Agreement, the Company and
the Guarantors will agree to file with the Securities and Exchange Commission
(the "Commission"), under circumstances set forth therein, (i) a registration
statement under the Act (the "Exchange Offer Registration Statement"),
relating to the 8 1/8% Exchange Senior Subordinated Notes due 2009 (the
"Exchange Notes") to be offered in exchange for the Initial Notes (the
"Exchange Offer") or (ii) a shelf registration statement pursuant to Rule 415
under the Act (each of the "Shelf Registration Statement" and the Exchange
Offer Registration Statement, being referred to as a "Registration
Statement"), relating to the resale by certain holders of the Initial Notes,
and to use their best efforts to cause such Registration Statements to be
declared effective and to consummate the Exchange Offer. This Agreement, the
Notes, the Guarantees, the Indenture and the Registration Rights Agreement
are hereinafter referred to collectively as the "Operative Documents."
3. DELIVERY AND PAYMENT. On the basis of the representations,
warranties and covenants contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell to the Placement
Agents, and each Placement Agent agrees, severally and not jointly, to
purchase from the Company, the principal amount of Initial Notes set forth
opposite its name on Schedule I hereto. The purchase price for the Initial
Notes will be $980 per $1,000 principal amount of Initial Note.
Delivery of the Initial Notes shall be made, against payment of the
purchase therefor, at the offices of Weil, Gotshal & Manges, 100 Crescent
Court, Suite 1300, Dallas, Texas or such other location as may be mutually
acceptable. Such delivery and payment shall be made at 9:00 a.m., Dallas time
or 10:00 a.m. New York City time on December 21, 1998 or at such other time
as shall be agreed upon by the Placement Agents and the Company. The time and
date of such delivery and payment are herein called the "Closing Date."
On the Closing Date, one or more Initial Notes in definitive form,
registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), having an aggregate amount corresponding to the aggregate
amount of the Initial Notes sold pursuant to the Exempt Resales to Eligible
Purchasers (the "Global Notes") shall be delivered by the Company to the
Placement Agents (or as the Placement Agents may direct), against payment by
the Placement Agents of the purchase price therefor, by wire transfer of same
day funds, to an account designated by the Company; provided, however, that
the Company shall give at least two business days' prior written notice to
the Placement Agents of the information required to effect such wire
transfer. The Global Notes shall be made available to the Placement Agents
for inspection not later than 10:00 a.m., New York City time, on the business
day immediately preceding the Closing Date.
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4. CERTAIN COVENANTS OF THE COMPANY AND THE GUARANTORS. Each of
the Company and the Guarantors, jointly and severally, covenants and agrees:
(a) To advise the Placement Agents promptly and, if requested
by the Placement Agents, confirm such advice in writing, (i) of the issuance
by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Notes for offering or
sale in any jurisdiction, or the initiation of any proceeding for such
purpose by any state securities commission or other regulatory authority and
(ii) of the happening of any event known to the Company or the Guarantors on
or before the Closing Date which in the judgement of the Company and the
Guarantors would require the making of any change in the Offering Memorandum
or in the information incorporated by reference therein so that as therefore
delivered to purchasers the Offering Memorandum will not include any untrue
statement of material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, and on request to prepare and furnish to
the Placement Agents and to dealers and other persons designated by the
Placement Agents such amendments or supplements (including appropriate
filings under the Exchange Act) to the Offering Memorandum as may be
necessary to any such change, provided that the Company shall be so obligated
subsequent to the time of purchase only so long as the Company is notified of
unsold allotments (failure by the Placement Agents to so notify the Company
cancels the Company's obligation under this Section 4(a)). The Company and
the Guarantors shall use their respective reasonable best efforts to prevent
the issuance of any stop order or order suspending the qualification or
exemption of any Notes under any state securities or Blue Sky laws and, if at
any time any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption of any Notes or the
Guarantees under any state securities or Blue Sky laws, the Company and the
Guarantors shall use their respective reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To as soon as practicable, make generally available to
its security holders an earnings statement (as contemplated by Rule 158 under
the Act) covering a period of twelve months after the effective date (as the
term "effective date" is defined in Rule 158) of the Offering Memorandum.
(c) To furnish such proper information as may be required and
otherwise to cooperate in qualifying the Initial Notes for sale under the
laws of such jurisdictions as the Placement Agents may designate and in
determining their eligibility for investment under the laws of such
jurisdiction; provided that the Company and the Guarantors shall not hereby
be required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction.
(d) To deliver to the Placement Agents without charge as soon as
practicable after the execution and delivery of this Agreement and thereafter to
furnish to the
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Placement Agents, without charge, as many copies of the Offering Memorandum
in final form and any documents incorporated by reference therein at or after
the date thereof, as the Placement Agents may reasonably request from time to
time in connection with Exempt Resales.
(e) To pay the reasonable fees and expenses of counsel for
the Placement Agents, and to reimburse the Placement Agents for their
reasonable out-of-pocket expenses incurred in contemplation of the
performance of this Agreement, in the event that the Initial Notes are not
delivered to and taken up and paid for by the Placement Agents hereunder for
any reason whatsoever except the failure or refusal of any Placement Agent to
take up and pay for the Initial Notes (i) pursuant to the terms of Section
6(b) or (ii) for some reason not permitted by the terms of this Agreement,
the Placement Agents agreeing to pay the fees and expenses of counsel for the
Placement Agents in any other event. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is
terminated, to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement (other than transfer
taxes payable on resale of the Initial Notes by the Placement Agents and fees
and disbursements of counsel for the Placement Agents, except as set forth in
the preceding sentence), including: (i) the fees, disbursements and expenses
of the counsel and accountants for the Company and each of the Guarantors in
connection with the issuance and sale of the Notes and all other fees or
expenses in connection with the preparation of the Preliminary Offering
Memorandum and the Offering Memorandum and all amendments and supplements
thereto, including all printing costs associated therewith, and the
delivering of copies thereof to the Placement Agents, in the quantities
herein above specified, (ii) all costs and expenses related to the transfer
and delivery of the Initial Notes to the Placement Agents, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection with the
offer and sale of the Initial Notes under state securities laws and all
expenses in connection with the qualification of the Initial Notes for offer
and sale under state securities laws as provided in Section 4( c) hereof,
including filing fees and the reasonable fees and disbursements of counsel
for the Placement Agents (not to exceed $3,000) in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any fees charged by rating agencies for the rating of the
Notes, (v) all document production charges and expenses of counsel to the
Placement Agents (but not including their fees for professional services) in
connection with the preparation of this Agreement, (vi) the fees and
expenses, if any, incurred in connection with the admission of the Initial
Notes for trading in PORTAL or any appropriate market system, (vii) the costs
and charges of the trustee and any transfer agent, registrar or depositary,
(viii) the cost of the preparation, issuance and delivery of the Initial
Notes, (ix) the costs and expense of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing
of the offering of the Initial Notes, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with
6
the road show presentations with the prior approval of the Company, travel
and lodging expenses of the representatives and officers of the Company and
any such consultants, and one-half of the cost of any aircraft chartered in
connection with the road show with the prior approval of the Company, and (x)
all other costs and expenses incident to the performance of the obligations
of the Company and the Guarantors hereunder for which provision is not
otherwise made in this Section.
(f) To use the proceeds from the sale of the Initial Notes in
the manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(g) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Initial Notes in a manner that would
require the registration under the Act of the sale to the Placement Agents
or the Eligible Purchasers of the Initial Notes or to take any other action
that would result in the Exempt Resales not being exempt from registration
under the Act.
(h) For so long as any of the Notes remain outstanding and
during any period in which the Company and the Guarantors are not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), to make available to any holder or beneficial owner of
Initial Notes in connection with any sale thereof and any prospective
purchaser of such Notes from such holder or beneficial owner, upon request of
such holder, the information required by Rule 144A(d) (4) under the Act.
(i) To furnish to the Placement Agents, at or before the time
of filing with the Commission subsequent to the date hereof and up to and
including the Closing Date, a copy of any document proposed to be filed by
the Company or any Guarantor pursuant to Section 13(a), 13(d), 14 or 15(d) of
the Exchange Act.
(j) Not to take, directly or indirectly, any action designed
to, or that might reasonably be expected to, cause or result in stabilization
or manipulation of the price of any security of the Company or any of the
Guarantors to facilitate the sale or resale of the Notes. Except as permitted
by the Act, none of the Company or the Guarantors will distribute any (i)
preliminary offering memorandum, including, without limitation, the
Preliminary Offering Memorandum, (ii) offering memorandum, including, without
limitation, the Offering Memorandum, or (iii) other offering material in
connection with the offering and sale of the Notes.
(k) Not to solicit any offer to buy or offer or sell the
Initial Notes by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Act.
(l) To use its reasonable best efforts to permit the Initial
Notes to be designated PORTAL securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL market.
7
(m) In connection with offers and sales to foreign purchasers
in accordance with Regulation S, none of the Company, the Guarantors, their
Affiliates or any person acting on any of their behalf (other than the
Placement Agents) will engage in any directed selling efforts (as that term
is defined in Regulation S) with respect to the Initial Notes, and the
Company, the Guarantors, their Affiliates and each person acting on any of
their behalf (other than the Placement Agents) will comply with the offering
restrictions requirement of Regulation S.
(m) During the period of two years after the Closing Date,
the Company will not, and will not permit any of its affiliates (as defined
in Rule 144 under the Securities Act) to resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired
by any of them.
5. CONDITIONS OF PLACEMENT AGENTS' OBLIGATIONS. The several
obligations of the Placement Agents to purchase and pay for the Initial
Notes, as provided herein, shall be subject to the following conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date:
(i) there shall have not occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of Protection One or the Company's securities by any
"nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the Act; and
(ii) there shall not have occurred any change, or any
development reasonably likely to result in a change, in the
condition, financial or otherwise, or in the earnings, business
or operations of the Company and the Guarantors, taken as a
whole, from that set forth in the Offering Memorandum (exclusive
of any amendments or supplements thereto subsequent to the date
of this Agreement) that, in the Placement Agents' judgment, is
material and adverse and that makes it, in the Placement Agents'
judgment, impracticable to market the Initial Notes on the terms
and in the manner contemplated in the Offering Memorandum.
(b) The Placement Agents shall have received on the Closing
Date certificates from each of the Company and Protection One, as the case
may be, to the effect set forth in Section 5(a)(i) and to the effect that the
representations and warranties of the Company and the Guarantors contained in
this Agreement are true and correct as of the Closing Date and
8
the Company and the Guarantors have complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Placement Agents shall have received on the Closing
Date an opinion, dated the Closing Date, in form and substance reasonably
satisfactory to the Placement Agents and counsel for the Placement Agents, of
Weil, Gotshal & Manges LLP, counsel for the Company and the Guarantors, to
the effect set forth in Exhibit B hereto.
(d) The Placement Agents shall have received on the Closing
Date an opinion, dated on the Closing Date, in form and substances reasonably
satisfactory to the Placement Agents and counsel for the Placement Agents, of
Renee T. Kingsley, Vice President-Legal Services and Chief Counsel for the
Company and the Guarantors, to the effect set forth in Exhibit C hereto.
(e) The Placement Agents shall have received an opinion,
dated the Closing Date, in form and substance reasonably satisfactory to the
Placement Agents, of Shearman & Sterling, counsel for the Placement Agents,
covering such matters as are customarily covered in such opinions.
(f) At the time this Agreement is executed and at the Closing
Date, the Placement Agents shall have received from Arthur Andersen LLP,
independent public accountants, dated as of the date of this Agreement and as
of the Closing Date, customary comfort letters addressed to the Placement
Agents and in form and substance reasonably satisfactory to the Placement
Agents and counsel for the Placement Agents with respect to the financial
statements and certain financial information of the Company, the Guarantors
and their respective subsidiaries contained or incorporated by reference in
the Offering Memorandum.
(g) Shearman & Sterling shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 5 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(h) The Company, the Guarantors and the Trustee shall have
entered into the Indenture, which shall be in full force and effect on the
Closing Date.
(i) The Company and the Guarantors shall have entered into
the Registration Rights Agreement, which shall be in full force and effect on
the Closing Date.
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6. TERMINATION OF AGREEMENT.
This Agreement shall be subject to termination by notice given
by the Placement Agents to the Company and Protection One, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange or the National
Association of Securities Dealers, Inc., (ii) trading of any securities of
the Company or Protection One shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity
or crisis that, in the Placement Agents' judgment, is material and adverse
and (b) in the case of any of the events specified in clauses 6(a)(i) through
6(a)(iv), such event, singly or together with any other such event, makes it,
in the Placement Agents' judgment, impracticable to market the Notes on the
terms and in the manner contemplated in the Offering Memorandum.
7. WARRANTIES AND REPRESENTATIONS OF THE COMPANY AND THE
GUARANTORS. Each of the Company and the Guarantors, severally and jointly,
represent and warrant to, and agree with the Placement Agents that:
(a) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in the Preliminary Offering
Memorandum or the Offering Memorandum complied or will comply when so filed
in all material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder and (ii) the Preliminary Offering
Memorandum does not contain and the Offering Memorandum, in the form used by
the Placement Agents to confirm sales prior to and on the Closing Date (as
defined in Section 4), will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Preliminary
Memorandum or the Offering Memorandum based upon information relating to any
Placement Agent furnished to the Company in writing by such Placement Agent
expressly for use therein.
(b) Each subsidiary of Protection One, Inc. that has executed
the Senior Credit Facility (as defined in the Offering Memorandum), the
Discount Notes Indenture (as defined in the Offering Memorandum), the Senior
Notes Indenture (as defined in the Offering Memorandum, the Convertible Notes
Indenture (as defined in the Offering Memorandum), or will, prior to the
Closing Date, execute the New Senior Credit Facility (as defined in the
Offering Memorandum), in the capacity as guarantor is listed on Exhibit A
hereto.
(c) Neither the Company nor, to the Company's knowledge, any
affiliate (as defined in Rule 501(b) of Regulation D under the Act, an
"Affiliate") of the Company has directly, or through any agent, (i) sold,
offered for sale, solicited offers to buy or otherwise
10
negotiated in respect of, any security (as defined in the Act) which is or
will be integrated with the sale of the Initial Notes in a manner that would
require the registration under the Act of the Initial Notes or (ii) engaged
in any form of general solicitation or general advertising in connection with
the offering of the Notes (as those terms are used in Regulation D under the
Act), or in any manner involving a public offering within the meaning of
Section 4(2) of the Act.
(d) The Initial Notes satisfy the requirements set forth in
Rule 144A(d)(3) under the Act.
(e) No form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) was used by the Company,
the Guarantors, their Affiliates or any of their respective representatives
(other than the Placement Agents, as to whom the Company and the Guarantors
make no representation) in connection with the offer and sale of the Initial
Notes contemplated hereby, including, but not limited to, articles, notices
or other communications, published in any newspaper, magazine, or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Initial Notes have been
issued and sold by the Company within the six-month period immediately prior
to the date hereof.
(f) Assuming the accuracy of the Placement Agents'
representations and warranties and compliance by the Placement Agents with
their agreements contained in Section 8 hereof, it is not necessary in
connection with the offer, sale and delivery of the Initial Notes to the
Placement Agents and to Eligible Purchasers in the manner contemplated by
this Agreement and the Offering Memorandum to register the Initial Notes
under the Act or to qualify the Indenture under the TIA.
(g) In connection with offers and sales to foreign purchasers
in accordance with Regulation S, none of the Company, the Guarantors, their
Affiliates or any person acting on any of their behalf has engaged or will
engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Initial Notes and the Company, the Guarantors, their
Affiliates and any person acting on any of their behalf have complied and
will comply with the offering restrictions requirement of Regulation S.
(h) Each of the Company and Protection One has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Offering Memorandum and is
duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and the Guarantors, taken as a whole.
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(i) This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor.
(j) The Notes have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Placement Agents in accordance with the
terms of this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, fraudulent conveyance, insolvency or similar laws affecting
creditors' rights generally and general principles of equity, and will be
entitled to the benefits of the Indenture and the Registration Rights
Agreement.
(k) Each Guarantee has been duly authorized by each Guarantor
and, upon execution and delivery of the Indenture by each Guarantor and,
assuming due execution and authentication of the Notes in accordance with the
Indenture and delivery and payment for the Notes by the Placement Agents in
accordance with the terms of this Agreement, will (x) be a valid and binding
obligation of each Guarantor enforceable in accordance with its terms subject
to applicable bankruptcy, fraudulent conveyance, insolvency or similar laws
affecting creditors' rights generally and general principles of equity.
(l) The Indenture has been duly authorized and, when executed
and delivered by the Company, each Guarantor and the Trustee, will be a valid
and binding agreement of each Company and each Guarantor, enforceable in
accordance with its terms, subject to applicable bankruptcy, fraudulent
conveyance, insolvency or similar laws affecting creditors' rights generally
and general principles of equity and, insofar as the same contains a waiver
of usury laws, as to enforceability.
(m) The Registration Rights Agreement has been duly
authorized and, when executed and delivered by the Company and each
Guarantor, will be a valid and binding agreement of the Company and each
Guarantor, enforceable in accordance with its terms, subject to applicable
bankruptcy, fraudulent conveyance, insolvency or similar laws affecting
creditors' rights generally and general principles of equity and except as
rights to indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law.
(n) The execution and delivery by the Company and each
Guarantor of, and the performance by the Company and each Guarantor of its
obligations under, this Agreement, the Indenture, the Registration Rights
Agreement, the Notes (in the case of the Company) and the Guarantees (in the
case of the Guarantors), and the issuance, sale and delivery of the Initial
Notes will not contravene (i) any provision of applicable law or the
certificate of incorporation or bylaws of the Company or each Guarantor or
(ii) any agreement or other instrument binding upon the Company or each
Guarantor or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any Guarantor, in each case
in this clause (ii) that is material to the Company and the Guarantors,
12
taken as a whole, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company and each Guarantor of its respective obligations
under this Agreement, the Indenture, the Registration Rights Agreement, the
Notes (in the case of the Company) or the Guarantees (in the case of the
Guarantors), except those already obtained and those that are not material to
the Company and the Guarantors, taken as a whole, and such as may be required
by the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Initial Notes and by Federal and state securities
laws with respect to the Company's obligations under the Registration Rights
Agreement.
(o) There has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations
of the Company and the Guarantors, taken as a whole, from that set forth in
the Final Memorandum (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(p) DSC Enterprises, Inc. is not a "Significant Subsidiary"
(as the term is defined in Section 1-02(v) of Regulation S-X).
Each of the Company and the Guarantors understand that the
Placement Agents and, for purposes of the opinions to be delivered to the
Placement Agents pursuant to Section 5 hereof, counsels to the Company and
Guarantors, and counsel to the Placement Agents will rely upon the accuracy
and truth of the foregoing representations and hereby consents to such
reliance.
8. WARRANTIES AND REPRESENTATIONS OF THE PLACEMENT AGENTS. Each
of the Placement Agents, severally and not jointly, represents, warrants and
covenants to the Company and agrees that:
(a) Such Placement Agent is a QIB, with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Initial Notes.
(b) Such Placement Agent is not acquiring the Initial Notes
with a view to any distribution thereof that would violate the Act or the
securities laws of any state of the United States or any other applicable
jurisdiction.
(c) No form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) has been or will be used
by such Placement Agent or any of its representatives in connection with the
offer and sale of any of the Initial Notes, including, but not limited to,
articles, notices or other communications published in any newspaper,
magazine, or similar medium or broadcast over television or radio, or any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
13
(d) Each of the Placement Agents agrees that, in connection
with the Exempt Resales, it will solicit offers to buy the Initial Notes only
from, and will offer to sell the Initial Notes only to, persons that it
reasonably believes to be Eligible Purchasers. Each of the Placement Agents
further (A) agrees that it will offer to sell the Initial Notes only to, and
will solicit offers to buy the Initial Notes only from, persons that it
reasonably believes to be Eligible Purchasers, (B) acknowledges and agrees
that, in the case of such Eligible Purchasers, such Initial Notes will not
have been registered under the Act and, if such Eligible Purchaser is a
person other than a foreign purchaser outside the United States, may be
resold, pledged or otherwise transferred by such Eligible Purchasers only (i)
to the Company or any subsidiary thereof, (ii) to a QIB in compliance with
Rule 144A, (iii) inside the United States to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Act
("Accredited Investor") that, prior to such transfer, furnishes to the
Trustee a signed letter containing representations and agreements relating to
the restrictions on transfer of the Initial Notes (the form of which letter
can be obtained from the Trustee) and, if such transfer is in respect of an
aggregate principal amount of Initial Notes of less than $100,000, an opinion
of counsel acceptable to the Company that such transfer is in compliance with
the Act, (iv) outside the United States in compliance with Rule 904 under the
Act, (v) pursuant to the exemption from registration provided by Rule 144
under the Act (if available) or (vi) pursuant to an effective registration
statement under the Act and in accordance with any applicable security laws
of any state of the United States or any other applicable jurisdiction and
(C) acknowledges that it will, and each subsequent holder is required to,
notify any purchaser of the security evidenced thereby of the resale
restrictions forth in (B) above.
(e) Each Placement Agent, severally and not jointly,
represents, warrants, and agrees with respect to offers and sales outside the
United States that:
(i) such Placement Agent understands that no action has
been or will be taken in any jurisdiction by the Company that
would permit a public offering of the Initial Notes, or
possession or distribution of the Preliminary Offering Memorandum
or the Offering Memorandum or any other offering or publicity
material relating to the Initial Notes, in any country or
jurisdiction where action for that purpose is required;
(ii) such Placement Agent will comply with all applicable
laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Initial Notes or has in its possession
or distributes the Preliminary Offering Memorandum or the
Offering Memorandum or any such other material, in all cases at
its own expense;
(iii) the Initial Notes have not been registered under the
Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in
accordance with Rule 144A or Regulation S under the Act or
pursuant to another exemption from the
14
registration requirements of the Act and in accordance with
any applicable securities laws of any State in the United
States or any other applicable U.S. jurisdiction;
(iv) such Placement Agent has offered the Initial Notes
and will offer and sell the Initial Notes (A) as part of their
distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering and the Closing
Date only in accordance with Rule 903 of Regulation S or as
otherwise permitted in Section 8(d); accordingly, neither such
Placement Agent, its Affiliates nor any persons acting on its or
their behalf have engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the
Initial Notes, and any such Placement Agent, its Affiliates and
any such persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(v) such Placement Agent has (A) not offered or sold and,
prior to the date six months after the Closing Date, will not
offer or sell any Initial Notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 (the
"Regulations"); (B) complied and will comply with all applicable
provisions of the Financial Services Act 1986 and the Regulations
with respect to anything done by it in relation to the Initial
Notes in, from or otherwise involving the United Kingdom, and (C)
only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the
issue of the Initial Notes to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on;
(vi) such Placement Agent understands that the Initial
Notes have not been and will not be registered under the
Securities and Exchange Law of Japan, and represents that it has
not offered or sold, and agrees not to offer or sell, directly or
indirectly, any Initial Notes in Japan or for the account of any
resident thereof except pursuant to any exemption from the
registration requirements of the Securities and Exchange Law of
Japan and otherwise in compliance with applicable provisions of
Japanese law; and
15
(vii) such Placement Agent agrees that, at or prior to
confirmation of sales of the Initial Notes, it will have sent to
each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Initial
Notes from it during the restricted period a confirmation or
notice to substantially the following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered and
sold within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
closing date of the offering, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Terms used in this Section 8(e) and not defined have the
meanings given to them by Regulation S.
The Placement Agents acknowledge that the Company and, for
purposes of the opinions to be delivered to the Placement Agents pursuant to
Section 5 hereof, counsel for the Company and the Guarantors and counsel for
the Placement Agents will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each Guarantor, jointly and severally,
agree to indemnify and hold harmless each Placement Agent and each person, if
any, who controls any Placement Agent within the meaning of either Section 15
of the Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Offering Memorandum (as amended or supplemented if
the Company and the Guarantors shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact necessary to make the statements therein in the light
of the circumstances under which they were made not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Placement Agent furnished to the Company in
writing by such Placement Agent expressly for use therein.
(b) Each Placement Agent agrees, severally and not jointly,
to indemnify and hold harmless the Company and the Guarantors and their
respective, directors, officers and each person, if any, who controls the
Company or any such Guarantor within the
16
meaning of either Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Placement
Agent, but only with reference to information relating to such Placement
Agent furnished to the Company in writing by such Placement Agent expressly
for use in the Preliminary Offering Memorandum or the Offering Memorandum or
any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to Section 9(a) or 9(b), such person (the
"INDEMNIFIED PARTY") shall promptly notify the person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the reasonable fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying
party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
firm (in addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by Morgan Stanley & Co.
Incorporated, in the case of parties indemnified pursuant to Section 9(a),
and by the Company, in the case of parties indemnified pursuant to Section
9(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) the indemnifying party has
been provided with a copy of the proposed terms of the settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement; provided that the indemnifying
party shall not be required to reimburse such amounts pursuant to a
settlement effected without its consent pursuant to this sentence during the
period that such indemnifying party is contesting such reimbursement
obligation in good faith by appropriate proceedings. No indemnifying party
shall, without the prior written
17
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section
9(a) or 9(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party under such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party from the offering of
the Initial Notes or (ii) if the allocation provided by clause 9(d)(i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 9(d)(i) above
but also the relative fault of such indemnifying party in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors, on the one
hand, and the Placement Agents, on the other hand, in connection with the
offering of such Initial Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Initial Notes
(before deducting expenses) received by the Company and the total discounts
and commissions received by the Placement Agents in respect thereof, bear to
the aggregate offering price of such Initial Notes. The relative fault of the
Company and the Guarantors, on the one hand, and of the Placement Agents, on
the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors or by the Placement Agents and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Placement Agents'
respective obligations to contribute pursuant to this Section 9 are several
in proportion to the respective principal amount of Initial Notes they have
purchased hereunder, and not joint.
(e) The Company, the Guarantors and the Placement Agents
agree that it would not be just or equitable if contribution pursuant to this
Section 9 were determined by PRO RATA allocation (even if the Placement
Agents were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 9(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to
in Section 9(d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Placement Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Initial Notes resold by it in
the initial placement of such Initial Notes were offered to
18
investors exceeds the amount of any damages that such Placement Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 9
are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in
this Section 9 and the representations, warranties and other statements of
the Company and the Guarantors contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any Placement
Agent or any person controlling any Placement Agent or by or on behalf of the
Company or any Guarantor or any of their respective officers or directors or
controlling persons and (iii) acceptance of and payment for any of the
Initial Notes.
10. NOTICES. All statements, requests, notices and agreements
shall be in writing or by telegram or facsimile and, if to the Placement
Agents, shall be sufficient in all respects if delivered or sent by
registered mail to Morgan Stanley & Co. Incorporated, 1585 Broadway, New
York, New York 10036, Attention: High Yield New Issues Group, and, if to the
Company or the Guarantors shall be sufficient in all respects if delivered or
sent by registered mail to the Company at 6011 Bristol Parkway, Culver City,
California 90230, Attention: President.
11. CONSTRUCTION. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York.
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. PARTIES IN INTEREST. The Agreement herein set forth has been
and is made solely for the benefit of the Placement Agents and the Company
and the Guarantors, and the controlling persons, directors and officers
referred to in Section 9 hereof, and their respective successors, assigns,
executors and administrators, and no other person shall acquire or have any
right under or by virtue of this Agreement. Nothing in this Agreement is
intended or shall be construed to give to any other person, firm or
corporation (including, without limitation, any purchaser of the Initial
Notes from a Placement Agent or any subsequent holder thereof) any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained.
The term "successor" as used in this Agreement shall not include
any purchaser, as such purchaser, of any Initial Notes from any Placement
Agent or any subsequent holder thereof or any purchaser, as such purchaser,
of any Notes or any subsequent holder thereof.
19
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts which, taken together, shall constitute one and the same
instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Company, the
Guarantors and the Placement Agents in accordance with its terms.
Very truly yours,
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
FIRST UNION CAPITAL MARKETS,
a division of WHEAT FIRST SECURITIES, INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
TD SECURITIES (USA) INC.
Acting severally on behalf of themselves and the
several Placement Agents named in Schedule I hereto.
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Bryan W. Andrzejewski
-----------------------------------
Name: Bryan W. Andrzejewski
Title: Vice President
20
The foregoing Placement Agreement is hereby confirmed as of the date first above
written.
PROTECTION ONE ALARM MONITORING, INC.
By: /s/ John W. Hesse
---------------------------------
Name: John W. Hesse
Title: Executive Vice President
PROTECTION ONE, INC.
By: /s/ Montgomery W. Cornell
-------------------------------
Name: Montgomery W. Cornell
Title: Vice President
PROTECTION ONE INTERNATIONAL, INC.
By: /s/ Montgomery W. Cornell
-------------------------------
Name: Montgomery W. Cornell
Title: Vice President
PROTECTION ONE INVESTMENTS, INC.
By: /s/ Montgomery W. Cornell
-------------------------------
Name: Montgomery W. Cornell
Title: Vice President
(SIGNATURES CONTINUED ON NEXT PAGE)
DSC ENTERPRISES, INC.
By: /s/ Montgomery W. Cornell
-------------------------------
Name: Montgomery W. Cornell
Title: Vice President
NETWORK MULTI-FAMILY SECURITY CORPORATION
By: /s/ Pat McColpin
-------------------------------
Name: Pat McColpin
Title: Vice President and
Chief Financial Officer
COMSEC NARRAGANSETT SECURITY, INC.
By: /s/ Montgomery W. Cornell
-------------------------------
Name: Montgomery W. Cornell
Title: Vice President
22
SCHEDULE I
NAME OF PLACEMENT AGENT AMOUNT
Morgan Stanley & Co. Incorporated $154,000,000
Chase Securities Inc. 70,000,000
First Union Capital Markets, a division of 42,000,000
Wheat First Securities, Inc.
Nationsbanc Montgomery Securities, LLC 42,000,000
TD Securities (USA) Inc. 42,000,000
------------
Total $350,000,000
------------
------------
23
EXHIBIT A
SUBSIDIARIES OF PROTECTION ONE, INC.
Protection One International, Inc., a Delaware corporation
Protection One Investments, Inc., a Delaware corporation
DSC Enterprises, Inc., a Maryland corporation
Network Multi-Family Security Corporation, a Delaware corporation
Protection One Alarm Monitoring, Inc., a Delaware corporation
Comsec Narragansett Security, Inc., a Delaware corporation
EXHIBIT B
OPINION OF COUNSEL FOR THE COMPANY
The opinion of the counsel for the Company to be delivered pursuant
to Section 5(c) of the Placement Agreement shall be to the effect that:
A. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as now being conducted.
B. Each of Protection One, Protection One International, Inc.,
Protection One Investments, Inc., Network Multi-Family Security Corporation
and Comsec/Narragansett Security, Inc. (the "Delaware Guarantors")) has been
duly incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business as now
being conducted
C. The Placement Agreement has been duly authorized, executed and
delivered by the Company, the Delaware Guarantors and DSC Enterprises, Inc.
(the "Other Guarantor" and, collectively with the Delaware Guarantors, the
"Guarantors").
D. The Notes have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Placement Agents in accordance with the
terms of the Placement Agreement, will be valid and binding obligations of
the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement.
E. The Guarantees have been duly authorized by the Guarantors
and, upon execution and delivery of the Indenture by each Guarantor and,
assuming due execution and authentication of the Notes in accordance with the
Indenture, will be valid and binding obligations of the Guarantors,
enforceable in accordance with their terms, subject to applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally and general
principles of equity, and will be entitled to the benefits of the Indenture
and the Registration Rights Agreement.
F. Each of the Indenture and the Registration Rights Agreement has
been duly authorized, executed and delivered by, and (assuming the due
authorization, execution and delivery of the Indenture by the trustee and the
Registration Rights Agreement by the Placementt Agents) is a valid and
binding agreement of, the Company and each Guarantor, enforceable in
B-2
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles of
equity and except as rights to indemnification and contribution under the
Registration Rights Agreement may be limited under applicable law.
G. The execution and delivery by the Company and each Delaware
Guarantor of, and the performance by the Company and each Delaware Guarantor
of their obligations under, the Placement Agreement, the Indenture, the
Registration Rights Agreement, the Notes (in the case of the Company) and the
Guarantees (in the case of the Delaware Guarantors) will not contravene any
provision of applicable New York, Delaware corporate or federal law
(excluding federal securities laws, as to which no opinion is expressed in
this paragraph G, and state securities or blue sky laws, as to which we
express no opinion) or the certificate of incorporation or by-laws of the
Company or any Delaware Guarantor or, to the best of such counsel's
knowledge, any material agreement or other instrument binding upon the
Company or any Delaware Guarantor, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Delaware Guarantor, and no
consent, approval, authorization or order of, or qualification with, any New
York, Delaware corporate or federal governmental body or agency is required
for the performance by the Company and each Delaware Guarantor of their
obligations under the Placement Agreement, the Indenture, the Registration
Rights Agreement, the Notes (in the case of the Company) or the Guarantees
(in the case of the Guarantors), except such as may be required by the
Federal securities laws (as to which we express no opinion in this paragraph
G) and securities or Blue Sky laws of the various states in connection with
the offer and sale of the Notes and by Federal and state securities laws with
respect to the obligations of the Company and the Delaware Guarantors under
the Registration Rights Agreement.
H. Neither the Company nor Protection One is, or after giving effect
to the offering and sale of the Notes and the application of the proceeds
thereof as described in the Offering Memorandum, will be, an "investment
company" as such term is defined in the Investment Company Act of 1940, as
amended.
I. The Indenture, the Notes, the Guarantees and the Registration
Rights Agreement conform in all material respects as to legal matters to
their respective descriptions contained under the caption "Description of the
Notes."
J. The statements in the Offering Memorandum under the caption
"Certain U.S. Federal Income Tax Considerations," insofar as such statements
constitute matters of law or legal conclusions, are accurate in all material
respects.
K. Such counsel (i) is of the opinion that each document incorporated by
reference in the Offering Memorandum (except for financial statements and
schedules and notes thereto
B-3
and other financial and statistical data included therein as to which such
counsel need not express any opinion), complied as to form when filed with
the Commission in all material respects with the Exchange Act and the rules
and regulations of the Commission thereunder and (ii) has no reason to
believe that (except for financial statements and schedules and other
financial and statistical data as to which such counsel need not express any
belief) the Offering Memorandum when issued contained, or as of the date such
opinion is delivered contains, any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
L. Assuming the representations and warranties of the Company, the
Guarantors and the Placement Agents in the Placement Agreement are true,
correct and complete and assuming compliance by the Company, the Guarantors
and the Placement Agents with the covenants set forth in the Placement
Agreement, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Placement Agents under the Placement Agreement
or in connection with the initial resale of such Notes by the Placement
Agents in accordance with the Placement Agreement to register the Notes or
the Guarantees under the Securities Act of 1933 or to qualify the Indenture
under the Trust Indenture Act of 1939, it being understood that no opinion is
expressed as to any subsequent resale of any Note.
With respect to paragraph K above, counsel may state that his or her
opinion and belief are based upon his or her participation in the preparation
of the Offering Memorandum (and any amendments or supplements thereto) and
review and discussion of the contents thereof [and review of the documents
incorporated by reference therein], but are without independent check or
verification except with respect to paragraphs I and J.
EXHIBIT C
Form of Opinion of Vice President-Legal Services and Chief Counsel of
the Company
The opinion of the Vice President-Legal Services and chief Counsel of
the Company to be delivered pursuant to Section 5(d) of the Placement
Agreement shall be to the effect that:
(A) After due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any
Guarantor is a party or to which any of the properties of the Company or
any Guarantor is subject other than proceedings fairly summarized in all
material respects in the Offering Memorandum and proceedings which such
counsel believes are not likely to have a material adverse effect on
Protection One and the Subsidiaries, taken as a whole, or on the power or
ability of the Company or any Guarantor to perform its obligations under
the Placement Agreement, the Indenture, the Registration Rights Agreement,
the Notes (in the case of the Company) or the Guarantees (in the case of
the Guarantors) or to consummate the transactions contemplated by the
Offering Memorandum.