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Exhibit (d)(15)
March 21, 2001
Xxx X. Xxxxxx
C/o Xxx X. Xxxxxx, Inc.
0000 Xxxxxx Xxx
Xxxx Xxxxxxx, XX 00000-0000
Re: Merger Transaction
Dear Xx. Xxxxxx:
This letter shall memorialize our agreement concerning the merger
transaction (the "Merger") between Xxx X. Xxxxxx, Inc. (the "Company") and an
affiliate of American Capital Strategies, Ltd. ("ACAS") contemplated by the
Agreement and Plan of Merger dated March 9, 2001 (the "Merger Agreement"). The
parties to the Merger Agreement are the Company, ACAS Acquisitions (Weston),
Inc. ("ACAS Acquisitions") and its subsidiary, Weston Acquisition Corporation
("Subsidiary"). The surviving corporation in the Merger is referred to in this
letter as the "surviving company".
Intending to be legally bound upon the telecopy exchange of signed
counterparts of this letter, you and the undersigned (each only with respect to
those numbered paragraphs of this letter noted in the signature lines below)
agree as follows:
1. After the closing of the Merger, ACAS Acquisitions shall cause
the surviving company to assume and be bound by the terms of
the Continuing Services/Retirement Agreement dated July 19th,
1997 between you and the Company.
2. After the closing of the Merger, ACAS Acquistions shall cause
the surviving company to provide to you, on at least a
quarterly basis, financial reports of the surviving company
broken down by division from the "CorpTrack" system (or any
successor system that may be implemented by the surviving
company to generate similar reports). You acknowledge that
those reports and the information in those reports will be
confidential and you shall keep all such reports and
information in those reports confidential.
3. After the closing of the Merger, you shall, on at least a
quarterly basis, be an "invited guest" to meetings of the
board of directors of the surviving company.
4. After the closing of the Merger, the general partners of RFW
Partnership Limited (the "Limited Partnership") promptly shall
take all necessary action to dissolve the Limited Partnership
and distribute the assets of the Limited Partnership pursuant
to the terms of the Agreement of Limited Partnership executed
November 4, 1994 (the "Limited Partnership Agreement").
Xxxxxxxxx X. Xxxxxx and Xxxxx X. Xxxxxxxx, as two of the three
general partners of the Limited Partnership, individually and
as representatives of RFW Enterprises, Inc., understand from
you that Limited Partnership units in the Limited Partnership
have been or will be distributed before closing, such that
upon the closing of the merger and dissolution of the Limited
Partnership (a) the partners other than you and your wife
would be entitled to receive 134,220 shares of Company Common
Stock (or the merger proceeds therefrom), corresponding to the
limited
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partnership units that have been or will be distributed to
them before closing, and (b) you and your wife would be
entitled to receive the remaining shares of Company Common
Stock (or the merger proceeds therefrom), free and clear of
any encumbrances whatsoever.
5. You acknowledge that you have met with Xxxx Xxxxx, Xxxx
Xxxxxxxx and Xxx Xxxxxx on Tuesday, March 20, 2001, and you
are satisfied that Messrs. Xxxxx, Xxxxxxxx and Xxxxxx believe
that the Merger is in the best interests of the Company.
6. After the closing of the Merger, ACAS Acquistions shall not
take any action to discourage any employee of the surviving
company from having contact with you.
7. You shall immediately withdraw with prejudice all claims
asserted in (a) the arbitration proceeding, including the
Demand for Arbitration, that you commenced on March 9, 2001,
in the American Arbitration Association, in which you are
named as Claimant and Xxxxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxx,
X. Xxxxxxxxx Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxx X. Xxxxxxx,
Xx., Xxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx, Xxxxxxx X. Xxxxxx and
Xxxxxx X. Xxxxxx are named as Respondents, involving
allegations of violation of a January 1998 Stock Pooling
Agreement; and (b) the Notice of Arbitration and mediation
demand, dated March 9, 2001, that you delivered to Xxxxxxxxx
X. Xxxxxx and Xxxxx X. Xxxxxxxx, involving allegations of
violation of the Limited Partnership Agreement.
8. You shall not commence, or assist any other person in
commencing or prosecuting, any legal proceeding to oppose the
Merger; provided, however, that nothing in this paragraph 8
shall prevent you from voting your shares of Series A Common
Stock in a vote of the Company's shareholders, or your shares
of Common Stock in a "Pool Vote" as defined in Paragraph
1.02(a) of the January 1998 Stock Pooling Agreement, for or
against the merger in your sole discretion.
9. As previously approved by the Board of Directors of the
Company, the Company shall reimburse you for the fees and
expenses of your counsel, Xxxx, Xxxxxx and XxXxxxxx, P.C. up
to a maximum amount of $25,000 (or a greater amount, if
approved by the Board of Directors of the Company).
Very truly yours,
ACAS Acquisitions (Weston), Inc. Xxx X. Xxxxxx, Inc.
(As to paragraphs 1, 2, 3, 4, (as to paragraphs 7, 8 and 9 only)
5, 6 and 8 only)
By: /s/ Xxxxx Xxxxxxxxx Xxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
______________________________ __________________________
Authorized Officer Chief Executive Officer
[Signatures continued on next page]
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[signature lines continued from preceding page]
/s/ Xxxxxxxxx X. Xxxxxx
______________________________________________________
Xxxxxxxxx X. Xxxxxx , individually and
as a representative of RFW Enterprises, Inc.
(As to paragraphs 4, 7 and 8 only)
/s/ Xxxxx X. Xxxxxxxx
______________________________________________________
Xxxxx X. Xxxxxxxx, individually and
as a representative of RFW Enterprises, Inc.
(As to paragraphs 4, 7 and 8 only)
Xxxxxx and accepted on March 21, 2001:
/s/ Xxx X. Xxxxxx
______________________________________________________
Xxx X. Xxxxxx
(as to all paragraphs)
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