Exhibit 10.1
CONSENT
Reference is hereby made to that certain Securities Purchase Agreement,
dated as of February 18, 2005, by and among Xxxxx 0 Xxxxxxxxxxxxxx, Xxx., a
Delaware corporation (the "Company"), and the Investors named on Exhibit A
thereto (the "Purchase Agreement"). Capitalized terms used in this Consent
without further definition have the meaning ascribed to those terms in the
Purchase Agreement.
RECITALS
WHEREAS, during the Standstill Period, Southeastern has agreed in the
Purchase Agreement not to, without the prior written consent of the majority of
the entire Board of Directors (excluding any representatives or designees of the
Investors), engage in certain actions with respect to the Company;
WHEREAS, pursuant to Section 5.6(a)(i)(B) of the Purchase Agreement,
during the Standstill Period, Southeastern has agreed not to, without the prior
written consent of the majority of the entire Board of Directors (excluding any
representatives or designees of the Investors), alone or in concert with others,
acquire any Common Stock, Voting Securities or Derivative Securities of the
Company except pursuant to the conversion of convertible debt of the Company
held by Southeastern;
WHEREAS, Southeastern has requested that the Company consent to
permitting Southeastern, on behalf of its institutional advisory clients, to
purchase, from time to time, additional shares of Common Stock in one or more
transactions that do not involve the issuance of additional shares of Common
Stock by the Company; and
WHEREAS, the Company is willing to consent to Southeastern purchasing,
from time to time, additional shares of Common Stock in one or more transactions
that do not involve the issuance of additional shares of Common Stock by the
Company in accordance with the terms of this Consent.
NOW THEREFORE, in consideration of the representations, warranties and
covenants contained in that certain Certificate of Southeastern attached hereto
as Exhibit A (the "Certificate"), the Company hereby consents as follows:
1. Holdings of Southeastern. In the Certificate, Southeastern has
represented and warranted to the Company that as of the date thereof
Southeastern Beneficially Owned (for purposes of the Purchase Agreement)
approximately 21% of the Common Stock, such percentage including certain shares
of Common Stock that Southeastern has represented it is not currently deemed to
beneficially own under Securities Exchange Commission Rule 13d-3 promulgated
under the Securities Exchange Act of 1934.
2. Consent. Pursuant to Section 5.6(a) of the Purchase Agreement and
notwithstanding the last sentence of Section 5.6(b) of the Purchase Agreement,
the Company hereby consents to permitting Southeastern to purchase, from time to
time, on behalf of its institutional advisory clients, additional shares of
Common Stock in one or more transactions; provided, however, that Southeastern
shall not purchase (or agree to purchase) any Common
1
Stock (x) other than in transactions that do not involve the issuance of Common
Stock by the Company and (y) unless after giving effect to such purchase
Southeastern would Beneficially Own (for purposes of the Purchase Agreement)
less than 318,869,219 shares of Common Stock (subject to adjustment on account
of stock splits, combinations, subdivisions and reclassifications) and unless
such purchase comply with the provisions of Section 5.6 of the Purchase
Agreement other than Section 5.6(a)(i)(B) thereof.
3. No Other Effects. Except as otherwise set forth in this Consent, the
terms of the Purchase Agreement remain unchanged and in full force and effect
without any amendment, modification or alteration.
4. Authorization. The Company hereby represents and warrants to
Southeastern that pursuant to the requirements of Section 5.6(a) of the Purchase
Agreement, a majority of the entire Board of Directors (excluding any
representatives or designees of the Investors) has consented to the execution
and delivery of this Consent.
2
IN WITNESS WHEREOF, the undersigned has executed this Consent as of
this 7th day of August, 2006.
XXXXX 0 COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Chief Executive Officer
3
Exhibit A
CERTIFICATE
August 7, 2006
Reference is hereby made to that certain Securities Purchase Agreement,
dated as of February 18, 2005, by and among Xxxxx 0 Xxxxxxxxxxxxxx, Xxx., a
Delaware corporation (the "Company"), and the Investors named on Exhibit A
thereto (the "Purchase Agreement"). Capitalized terms used herein without
further definition have the meaning ascribed to those terms in the Purchase
Agreement.
In order to induce the Company to grant the consent, dated the date hereof,
to which this Certificate is an exhibit (the "Consent"), the undersigned hereby
certifies to, and agrees with, the Company that:
1. As of the date hereof, Southeastern Beneficially Owns approximately 21%
of the Common Stock, such percentage including certain shares of Common Stock
that Southeastern is not currently deemed to beneficially own under Securities
Exchange Commission Rule 13d-3 under the Securities Exchange Act of 1934.
2. Southeastern has not formed a Group with any other Person or Persons and
is not a member of a Group. Southeastern shall not take any actions such that it
and any other Person or Persons may be deemed to be a Group.
3. During the Standstill Period, Southeastern shall not purchase (or agree
to purchase) any Common Stock (x) other than in transactions that do not involve
the issuance of Common Stock by the Company and (y) unless after giving effect
to such purchase Southeastern would Beneficially Own less than 318,869,219
shares of Common Stock (subject to adjustment on account of stock splits,
combinations, subdivisions and reclassifications) and unless such purchase
comply with the provisions of Section 5.6 of the Purchase Agreement other than
Section 5.6(a)(i)(B) thereof.
4. Except as otherwise set forth in the Consent, the terms of the Purchase
Agreement remain unchanged and in full force and effect without any amendment,
modification or alteration.
SOUTHEASTERN ASSET MANAGEMENT, INC.
By: /s/ Xxxxxx X. XxXxxxxxx
Name: Xxxxxx X. XxXxxxxxx
Title: VP & General Counsel
