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CUSIP No. 000000000 (Page 8 of 12 Pages)
EXHIBIT 2
STOCKHOLDER'S AGREEMENT
STOCKHOLDER'S AGREEMENT, dated February 17, 1997 (the "Agreement"),
between Metropolitan Capital Advisors, Inc., a Delaware corporation
("Metropolitan"), and Xxxxxx Xxxxxxx, a resident of Naples, Florida (the
"Stockholder").
WHEREAS, Metropolitan and the Stockholder have each independently
concluded that their respective interests, and the interests of other
shareholders of Xxxxxxx Corporation, a New York corporation (the "Company")
would be furthered by seeking greater shareholder representation on the
Company's Board of Directors; and
WHEREAS, Metropolitan and the Stockholder each desire to establish in
this Agreement certain terms and conditions relating to the parties' voting of
the common stock of the Company in regard to election of such directors and
matters related thereto; and
WHEREAS, Metropolitan is the general partner of Bedford Falls Investors,
L.P., a Delaware limited partnership ("Bedford"), which is the beneficial owner
of shares of common stock of the Company, and as general partner Metropolitan
has the power to direct the voting of such shares of common stock;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Representations and Warranties.
(a) Metropolitan represents and warrants to the
Stockholder as follows;
(i) Metropolitan has full power and authority to execute,
deliver and perform this Agreement;
(ii) This Agreement has been duly and validly authorized,
executed and delivered by Metropolitan and constitutes a valid
and binding obligation of Metropolitan enforceable against
Metropolitan in accordance with its terms;
(iii) The execution, delivery and performance of this
Agreement by Metropolitan do not violate or conflict with or
constitute a default under the Metropolitan organizational
instruments or any material agreement to which it is a party or
by which it or its property is bound.
(b) The Stockholder represents and warrants to Metropolitan as
follows:
(i) The Stockholder has full power and authority to
execute, deliver and perform this Agreement;
(ii) This Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder enforceable against the Stockholder
in accordance with its terms; and
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CUSIP No. 000000000 (Page 9 of 12 Pages)
(iii) The execution, delivery and performance of this
Agreement by the Stockholder does not violate or conflict with or
constitute a default under any material agreement to which
Stockholder is a party, or by which Stockholder is bound.
2. Term of Agreement. The term (the "Term") of this Agreement shall
commence on the date hereof and shall continue under the earlier to occur of (i)
the conclusion of the second Annual Meeting of stockholders following the
execution hereof, and (ii) the date on which the Voting Power of the Voting
Securities beneficially owned by Metropolitan and any affiliates shall represent
less than six percent (6%) of the Total Voting Power, as evidenced by
Metropolitan's most recently filed Schedule 13D (and excluding the effect to
increases in the number of Voting Securities outstanding), and (iii) September
30, 1997, if, but only if, neither Metropolitan not its affiliates has by such
date proposed amendments to the Company's by laws to increase the dated number
of Directors by the Company and nominated persons for election to such vacancies
on the Company's Board of Directors. For the purposes of this Agreement, (i) the
term "Voting Securities" shall mean all securities of the Company entitled to
vote generally in the election of directors of the Company, and (ii) the Term
"Voting Power" shall mean voting power in the general election of directors of
the Company, and (iii) the term "Total Voting Power" shall mean the total
combined Voting Power of all the Voting Securities then outstanding.
3. Voting and Other. (a) Each of the Stockholder and Metropolitan agree
that, during the Term (i) it will, and will cause their respective affiliates
to, be present, in person or represented by proxy, at all stockholder meetings
of the Company for the election of directors, so that all Voting Securities
beneficially owned by it and its affiliates shall be counted for the purpose of
determining the presence of a quorum for the election of directors at such
meetings, and (ii) it will, and will cause its affiliates to, vote or act by
consent with respect to, all Voting Securities beneficially owned by it and its
affiliates (x) for the election of the nominees for the Company's Board of
Directors nominated by Metropolitan, or its affiliates, or such other nominees
otherwise identified in writing by Metropolitan as being nominees for which
Metropolitan will cast votes in favor ("Metropolitan Nominees"), (y) amend the
by laws of the Company to increase the total number of Directors of the Company
to be elected by Shareholders to 13, six (6) of whom will be elected during the
course of the next two annual meetings, and (z) for such other actions of
stockholders as may be reasonably necessary or helpful to cause the election of
the Metropolitan Nominees to the Company's Board of Directors at the earliest
possible time, including such amendments to the Company's by-laws or Certificate
of Incorporation as may be proposed or supported by Metropolitan. In the event
any party hereto is not expected to be present at an Annual Meeting or
adjournment thereof at a time when this Agreement is in effect, then he shall
execute in favor of a party attending a revocable proxy to vote his Voting
Securities in the manner and for the purposes outlined hereinabove. Other than
the foregoing, there shall be no restrictions on any party's ability to vote any
Voting Securities for any other purpose, and subject to compliance to Article 6
hereof any party may dispose in whole or in part of his economic interest in his
Voting Securities in any manner which complies with applicable law. It is
expressly understood and agreed that the provisions of this Agreement are not
intended to cover and shall have no force and effect upon any securities of
Xxxxxxx Corp. with respect to which a party hereto acts as a fiduciary under any
trust instrument for the benefit of a third party.
(b) Each of stockholder and Metropolitan agree that Metropolitan
shall be solely responsible for the conduct of any proxy contest soliciting the
election of the Metropolitan Nominees, or other matters referred to in 3(a)
above, including all decisions and negotiations to be made in connection
therewith, and Metropolitan shall be responsible for all expenses incurred by it
including all legal, printing, solicitor, litigation and other expenses incurred
in connection with this agreement, the nomination or election of the
Metropolitan Nominees, the solicitation of proxies or any other matter arising
our of the matters referred to herein. Stockholder acknowledges that
Metropolitan may seek to share such expenses with other parties, or to obtain
reimbursement of such expenses from the Company, and that Stockholder
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CUSIP No. 000000000 (Page 10 of 12 Pages)
does not intend to seek reimbursement for expenses incurred by Stockholder prior
to the date hereof either from Metropolitan or the Company.
4. Acquisition of Voting Securities. Notwithstanding any other provision
of this Agreement, any Voting Securities acquired by the Stockholder or any
party hereto subsequent to the date hereof, and within the Term, shall
automatically and without any action by any party hereto, be subject to the
provisions of this Agreement.
5. Certain Prohibited Actions. Other than in support of the Metropolitan
Nominees, during the Term, without the prior written consent of Metropolitan,
the Stockholder and any other parties hereto, with respect to the election of
Directors or by law amendments to increase the number of directors as described
above, will not, and will cause each of its controlled affiliates not to, singly
or as part of a "group", directly or indirectly, through one or more
intermediaries: (i) make, support, or vote in favor of, or in any way
participate, directly or indirectly, in any "solicitation" or "proxies" (as such
terms are defined or used in Regulation 14A under the Exchange Act) with respect
to the Voting Securities (including by the execution of actions by written
consent), become a "participant" in any "election contest" (as such terms are
defined or used in Rule 14A-11 under the Exchange Act) with respect to the
Company or seek to advise or influence any person or entity with respect to the
voting of any Voting Securities; (ii) initiate, propose, or participate in the
solicitation of stockholders for the approval of, one or more stockholder
proposals with respect to the Company in Rule 14A-8 under the Exchange Act or
induce any other individual or entity to initiate any stockholder proposal
relating to the Company; (iii) form, join, influence or participate in a
"group", act in concert with any other person or entity or otherwise become a
"person", for the purpose of acquiring, holding, voting or disposing of any
Voting Securities or taking any other actions prohibited under this Section 5;
(iv) act, alone or in concert with others (including by providing financing for
another party), to seek or offer to control the Company (provided that actions
of the Metropolitan Nominees on the Board pursuant to Section 3(a) shall not be
deemed a violation of the foregoing); (v) deposit any Voting Securities in a
voting trust or subject any Voting Securities to any arrangement or agreement
with respect to the voting thereof; or (vi) disclose any intention, plan or
arrangement inconsistent with the foregoing prohibitions or advise or assist any
other person in connection with the foregoing prohibitions; PROVIDED HOWEVER,
that nothing contained herein shall prohibit any person, including the
Stockholder from publicly announcing his position as a director with respect to
any matter concerning the Company.
6. Disposition of Voting Securities. During the Term, the Stockholder
and Metropolitan shall not transfer any Voting Securities, whether by sale,
assignment, pledge, encumbrance, gift or otherwise, unless (x) the transferee of
such Voting Securities agrees in writing to be bound by the provisions hereof or
(y) the Transferor executes an irrevocable Proxy in favor of the other parties
hereto which incorporates the provisions of this Agreement and which is valid
under the laws of the State of New York, accompanied by an opinion of counsel as
validity and enforceability, or (z) such transfer takes place after the record
date for the second annual Meeting of Shareholders after the date of this
Agreement so that the Transferor party hereto continues as a matter of law to be
able to vote the Voting Securities at the Annual Meeting and does not execute a
proxy in favor of the transferee for such purpose.
7. Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreement and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
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CUSIP No. 000000000 (Page 11 of 12 Pages)
8. Amendment and Modification. This Agreement may be amended, modified
and supplemented only by written agreement of Metropolitan and the Stockholder.
9. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telecopier or air courier guaranteeing overnight
delivery:
(a) If to Metropolitan:
c/o Xxxxxx X. Xxxxxxxx
Xxxx Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
or to such other person or address as Metropolitan shall furnish to the
Stockholder in writing;
(b) If to the Stockholder:
c/o Stu Miesenzahl
Xxxxxx, Xxxxxxx & Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
or to such other person or address as the Stockholder shall furnish to
Metropolitan in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given; at the time delivered by hand, if personally
delivered; five business days after being deposited in the mail, postage
prepaid, if sent by registered first-class mail; when receipt acknowledged, if
telecopied; and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
10. Required Filings. Each party hereto further agrees that they have
made, and shall continue to make, all reasonable efforts, in good faith, to
comply with all applicable state or federal securities laws with respect to
their ownership of the Company's securities and the transactions and matters
contemplated herein.
11. Severability. In the event that any provision(s) of this Agreement
shall be held illegal, invalid or unenforceable under applicable law, then such
illegality, invalidity or unenforceability shall not affect any other
provision(s) hereof and this Agreement shall remain in force and be effectuated
as if such illegal, invalid or unenforceable provision is not part of this
Agreement; PROVIDED HOWEVER, (i) if the deletion of any provision of this
Agreement frustrates a material purpose or right of Metropolitan or the
Stockholder, then Metropolitan or Stockholder may terminate this Agreement
forthwith and without further liability or obligation and (ii) absent such
frustration and to the extent legally possible, Metropolitan and the Stockholder
shall seek in good faith alternate provisions or arrangements to achieve the
same purposes as such provision.
12. Successors; Assignment. This Agreement and all of the provisions
hereof shall be binding and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, successors
(including any successor by merger, reorganization, consolidation or other
business combination) and permitted assigns, but neither this Agreement nor any
of the rights, interests or
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obligations hereunder shall be assigned by any party hereto without the
prior written consent of the other party.
13. Governing Law. This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with the laws of
the State of New York, without regard to its conflicts of law doctrine.
14. Jurisdiction and Venue. The Stockholder and Metropolitan hereby
agree that any suit, claim, action or proceeding relating to or arising under
this Agreement shall be brought exclusively in a state court of New York (a "New
York Court"). Each of the Company, the Stockholder and Metropolitan hereby
consents to personal jurisdiction in any such action brought in any such New
York Court, consents to service of process upon it and waives any objection it
may have to venue in any such New York Court or to any claim that any such New
York Court is an inconvenient forum. The Stockholder and Metropolitan hereby
waive trial by jury in any suit, claim, action or proceeding in any court
relating to or arising under this Agreement. The Stockholder and Metropolitan
confirm that the foregoing waiver is informed and freely made.
15. Counterparts. This Agreement may be executed simultaneously in
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. Any additional parties
who execute this Agreement after the date hereof, upon execution by
Metropolitan, shall be deemed a stockholder for purposes hereto.
16. Headings. The headings of the Sections of this Agreement are
inserted for convenience only and shall not constitute a part hereof or affect
in any way the meaning or interpretation of this Agreement.
17. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein, and supersede all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto.
18. Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any person or corporation, other than the parties hereto
and their successors or assigns, any rights or remedies under or by reason of
this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
METROPOLITAN CAPITAL ADVISORS, INC.
By: /s/ Xxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
Xxxxx Xxxxxxxx, President
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Name and Title
SAME AGREEMENT SIGNED BY: /s/ Xxxxx X. Xxxxxxx
------------------------- -------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxxxxxx X. Xxxxx
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Xxxxxxxxx X. Xxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx, III
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Xxxxxx X. Xxxxxxx, III
