SETTLEMENT AGREEMENT
This
Agreement (this “Agreement”)
is
made and entered into as of October 24, 2007, by and between Xxxxxx Xxxx
Corporation (the “Company”),
and
each of the entities and natural persons listed on Schedule
A
hereto
(such entities and natural persons and any Ramius Nominee that executes a
joinder to this Agreement, collectively, the “Ramius
Group”)
(each
of the Company and the Ramius Group, a “Party”
to
this
Agreement, and collectively, the “Parties”).
RECITALS
A. The
Ramius Group beneficially owns in the aggregate the number of shares of the
Company’s outstanding common stock, par value $.001 per share (the “Common
Stock”),
set
forth on Schedule
A;
B. Pursuant
to a nomination letter duly submitted on October 5th
in
accordance with the Company’s Second Amended and Restated Bylaws (the
“Nomination
Letter”),
Starboard Value and Opportunity Master Fund Ltd., a member of the Ramius Group,
has nominated a slate of three candidates for election to the Board of Directors
of the Company (the “Board”)
at the
Company’s next Annual Meeting of Stockholders (including any adjournment or
postponement thereof, the “2007
Annual Meeting”),
which
is currently scheduled to be held on December 5, 2007;
C. The
Parties have agreed that Starboard
Value and Opportunity Master Fund Ltd. shall
withdraw its Nomination Letter and that the Ramius Group will not present any
nominees or proposals at the 2007 Annual Meeting;
D. The
Governance and Nominating Committee of the Board (the “Nominating
Committee”)
has
reviewed the qualifications of Xxxxxxx Xxxxx and Xxxxxx Xxxxxxxxxx
(collectively, the “Ramius
Nominees”)
to
serve as members of the Board and has conducted inquiries into their respective
backgrounds, skills and qualifications, including reviews of the Ramius
Nominees’ responses to questionnaires, interviews of the Ramius Nominees and
professional background investigations of the Ramius Nominees; and the
Nominating Committee has evaluated the independence of the Ramius Nominees,
the
qualifications of Xxxxxxx Xxxxx to serve as a member of the Nominating Committee
of the Board and the qualifications of Xxxxxx Xxxxxxxxxx to serve as a member
of
the Audit Committee;
E. The
Nominating Committee has recommended to the entire Board that (i) the Board
nominate the Ramius Nominees for election to the Board at the 2007 Annual
Meeting, (ii) the Board determine that the Ramius Nominees are independent
directors under the listing standards of The NASDAQ Stock Market (“NASDAQ”),
and
(iii) following their respective elections to the Board, Xxxxxxx Xxxxx be
appointed to the Nominating Committee of the Board and Xxxxxx Xxxxxxxxxx be
appointed to the Audit Committee.
F. The
Board
considered the recommendations of the Nominating Committee and after conducting
such reviews of the Ramius Nominees as it has deemed appropriate, (i) has
determined that neither Ramius Nominee has any relationship with the Company
(either directly or as a partner, equity holder or officer of an organization
that has a relationship with the Company) that would interfere with his exercise
of independent judgment in carrying out the responsibilities of a member of
the
Board or any of its committees and that both Ramius Nominees are independent
directors as defined under the rules of NASDAQ, and (ii) has determined
that it is in the best interests of the stockholders of the Company to nominate
the Ramius Nominees for election to the Board at the 2007 Annual Meeting, to
serve for a term of three years expiring at the Company’s 2010 Annual Meeting of
Stockholders, in place of two current members of the Company’s Board to be
determined by the Company’s Board, and each of whose current terms will expire
at the 2007 Annual Meeting, and to recommend the Ramius Nominees for election
to
the Board;
1
G. The
Ramius Group has determined to vote its shares of Common Stock in favor of
the
Ramius Nominees and one incumbent director whose current term of office expires
in 2007 nominated by the Board to be elected as members of the Board at the
2007
Annual Meeting (such incumbent director, together with the Ramius Nominees,
the
“2007
Nominees”);
H. The
Ramius Group has agreed to certain restrictions on its actions, including
restrictions relating to its acquisition of additional shares of Common Stock,
from the date here of until and including the earlier of the day after the
date
of the Company’s 2008 Annual Meeting of Stockholders (the “2008
Annual Meeting”)
or the
date that is thirty (30) days after the one-year anniversary date of the 2007
Annual Meeting;
I. The
Company and the Ramius Group desire, in connection with the nomination of the
Ramius Nominees to the Board, to make certain covenants and agreements with
one
another pursuant to this Agreement.
NOW
THEREFORE, in consideration of the covenants and premises set forth herein,
and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto hereby agree as
follows:
1. Starboard
Value and Opportunity Master Fund Ltd. hereby withdraws its Nomination
Letter.
2. The
Board
has agreed to nominate the Ramius Nominees to be elected as members of the
Board
at the 2007 Annual Meeting to serve for a term of three years expiring at the
Company’s 2010 Annual Meeting of Stockholders and will recommend a vote “for”
the Ramius Nominees at the 2007 Annual Meeting and solicit proxies from all
stockholders to vote all shares of Common Stock in favor of the election to
the
Board of the Ramius Nominees. At the 2007 Annual Meeting, the Ramius Group
shall
appear in person or by proxy and vote all shares of Common Stock beneficially
owned by it and its Affiliates in favor of the election to the Board of the
2007
Nominees. The Ramius Group shall cause to be executed proxies for the 2007
Nominees (in the form utilized by the Company to solicit proxies for all
stockholders) so as to vote all shares of Common Stock beneficially owned by
it
and its Affiliates (as defined below) in favor of the election to the Board
of
the 2007 Nominees. The Ramius Group shall not withdraw or modify any such
proxies.
By
execution of this Agreement, each of the Ramius Nominees hereby consents to
be
nominated for election to the Board at the 2007 Annual Meeting.
3. In
accordance with Article IV of the Company’s Second Amended and Restated Bylaws
(the “Bylaws”),
the
Company shall take all action necessary in furtherance of:
a. no
later
than seven (7) days following the election of the Ramius Nominees to the Board,
the appointment of (i) Xxxxxxx Xxxxx as a member of the Nominating
Committee of the Board, and (ii) Xxxxxx Xxxxxxxxxx as a member of the Audit
Committee of the Board;
2
b. the
establishment of a strategic planning committee of the Board in connection
with
its strategic planning, and the appointment of Xxxxxxx Xxxxx as a member of
such
committee; and
c. the
appointment of Xxxxxxx Xxxxx as a member of any special committee of the Board
that may be established.
4. The
Ramius Group and each member of the Ramius Group shall not (i) nominate any
person for election at the 2007 Annual Meeting or (ii) submit any proposal
for consideration at, or bring any other business before, the 2007 Annual
Meeting, directly or indirectly. The Ramius Group shall not enter into any
agreement, understanding or arrangement with the purpose or effect to cause
or
further any of the foregoing or otherwise engage in any activities with the
purpose or effect to cause or further any of the foregoing.
The
Company acknowledges that the only matters that shall be presented for
consideration at the 2007 Annual Meeting include the election of the 2007
Nominees, an amendment to the Company’s Fifth Amended and Restated Employee
Incentive Compensation Plan to increase by up to 350,000 the
number of shares of Common Stock authorized for issuance under it and the
ratification of the Company’s independent registered public accounting
firm.
5. From
the
date hereof through the 2007 Annual Meeting, each of the Company, the Ramius
Group and each member of the Ramius Group shall not directly or indirectly
engage in any activities in opposition to the election of the 2007 Nominees
at
the 2007 Annual Meeting and shall not enter into any agreement, understanding
or
arrangement with the purpose or effect to cause or further any of the
foregoing.
6. The
2007
Annual Meeting shall be held on December 5, 2007 or within 30 days thereafter,
at the time and place indicated in the notice of annual meeting to be sent
to
the stockholders of the Company in connection with the 2007 Annual
Meeting.
7. For
a
period commencing with the date hereof and ending on the earlier to occur of
(i) the day after the date of the 2008 Annual Meeting or (ii) that
date that is thirty (30) days after the one-year anniversary date of the 2007
Annual Meeting (such period, the “Standstill
Period”),
neither the Ramius Group (nor Xx. Xxxxxxxxxx, individually, if he is no longer
a
member of a Section 13(d) group with RCG Starboard Advisors, LLC and its
Affiliates) nor any of its members or any of their Affiliates shall, without
the
prior written consent of the Board, specifically expressed in a written
resolution adopted by a majority vote of the entire Board:
3
a. acquire
or agree to acquire, or publicly offer or propose to acquire, directly or
indirectly, by purchase or otherwise, any voting securities or direct or
indirect rights or options to acquire any voting securities of the Company
or
any subsidiary thereof, or of any successor to or person in control of the
Company, such that, following any such acquisition, the Ramius Group, including
its Affiliates, would hold, beneficially own or control in the aggregate in
excess of 2,804,146 shares of Common Stock (the “Standstill
Limit”);
provided,
however,
(i) in the event that the share repurchase program (the “Repurchase
Program”)
announced by the Company on September 24, 2007 has not been completed (which
completion, for this purpose, shall mean that shares have been purchased under
the Repurchase Program for the maximum aggregate price for which shares may
be
repurchased under the Repurchase Program and all such shares shall have been
canceled or shall be held in treasury) by the date that is eight (8) months
from
the date hereof (“Repurchase
Date”),
the
Standstill Limit shall be that number of shares of Common Stock that is equal
to
the greatest of (A) 2,804,146, (B) such number of shares of Common Stock
resulting from an increase in the Standstill Limit pursuant to clause (ii)
below, and (C) 24.9% of the outstanding shares of Common Stock as of the
Repurchase Date (the number of outstanding shares of Common Stock as of the
Repurchase Date shall be communicated by the Company to Ramius Capital on behalf
of the Ramius Group, within 2 business days of the Repurchase Date), (ii) in
the
event between the date hereof and the Repurchase Date the number of outstanding
shares of Common Stock (as reported by the Company) increases above 11,945,621
shares, the Standstill Limit shall increase by a number of shares equal to
25%
of the number of outstanding shares of Common Stock in excess of 11,945,621
shares and any such increase as of the Repurchase Date shall survive the
Repurchase Date, (iii) in the event that, as of any date after the Repurchase
Date and prior to the termination hereof (any such date, a “Reset
Date”),
the
Standstill Limit represents less than 23% of the outstanding shares of Common
Stock as a result of the issuance by the Company after the Repurchase Date
of a
number of shares of Common Stock in excess of the number of shares repurchased
by, and/or forfeited to, the Company after the Repurchase Date, then the
Standstill Limit shall increase to that number of shares of Common Stock that
is
equal to 24.9% of the outstanding shares of Common Stock of the Company as
of
the applicable Reset Date, (iv) for purposes of the Standstill Limit, any shares
of Common Stock (whether or not restricted) and options to purchase shares
of
Common Stock issued or granted to Xx. Xxxxx in his capacity as a director of
the
Company shall not be deemed to be held, beneficially owned or controlled by
the
Ramius Group, and such shares shall not be deemed to be outstanding shares
of
Common Stock, and (v) for purposes of the Standstill Limit, any shares of Common
Stock (whether or not restricted) and options to purchase shares of Common
Stock
issued or granted to Xx. Xxxxxxxxxx after the date hereof in his capacity as
a
director, and up to 10,000 shares of Common Stock otherwise acquired by Xx.
Xxxxxxxxxx in his individual capacity, shall not be deemed to be held,
beneficially owned or controlled by the Ramius Group, and such shares shall
not
be deemed to be outstanding shares of Common Stock; provided,
further,
that
nothing herein shall limit the ability of any member of the Ramius Group to
transfer any voting securities of the Company or direct or indirect rights
or
options to acquire any voting securities of the Company to any other member
of
the Ramius Group; and provided,
further,
that
Affiliates of the Ramius Group that execute a joinder to this Agreement in
a
form reasonably acceptable to the Company shall become members of the Ramius
Group at the time of such execution;
b. except
as
provided in Section 8 hereof
or
as otherwise expressly provided in this Agreement, (i) initiate, propose,
induce or attempt to induce any other person to initiate any stockholder
proposal, nominate any person to be elected as a member of the Board or make
any
attempt to call a special meeting of stockholders of the Company,
(ii) submit any proposal for consideration at, or bring any other business
before, any meeting of stockholders of the Company, or request that the Company
include any proposals or nominees for election as members of the Board in any
Company proxy statement, (iii) engage, or in any way participate, directly
or indirectly, in any “solicitation” (as such term is defined in Rule 14a-1(l)
promulgated by the SEC under the Exchange Act) of proxies or consents (whether
or not relating to the election or removal of directors), seek to advise,
encourage or influence any Person with respect to the voting of any Company
securities (except in support of Board-approved proposals), or
(iv) otherwise communicate with the Company’s stockholders or others
pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act; provided,
however,
that
nothing herein shall limit the ability of the Ramius Group to vote its voting
securities on any matter submitted to a vote of the stockholders of the Company
or announce its opposition to any Board-approved proposals not supported by
Xx.
Xxxxx or limit the ability of the Ramius Nominees to exercise their rights
as
members of the Board while serving as members of the Board;
4
c. make
any
public announcement with respect to, or publicly offer to effect, seek or
propose (with or without conditions), any merger, acquisition, consolidation,
other business combination, restructuring, recapitalization, tender offer,
exchange offer or other extraordinary transaction with or involving the Company
or any of its subsidiaries or any of its or their securities or assets;
provided,
however,
that
nothing herein shall limit the ability of the Ramius Group to issue any
communication contemplated by Rule 14a-1(l)(2)(iv) stating how they intend
to
vote and the reasons therefor with respect to any extraordinary transaction
of
any kind or nature between the Company and any third party unaffiliated with
the
Ramius Group; provided
further,
that
nothing contained herein shall limit the ability of the Ramius Group to file
an
amendment or amendments to its Schedule 13D regarding the Common Stock of
the Company as required by law or to make other securities or tax filings as
required by law so long as the Ramius Group does not enter into any contract,
arrangement, understanding or relationship (legal or otherwise) with respect
to
the Company’s voting securities, or otherwise take any action, in violation of
clauses (a)-(f) of Section 7 hereof;
d. (i)
form,
join or in any way participate in a “group” as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder, other than a “group” that includes all or some lesser
number of persons identified as members of the Ramius Group, but does not
include any other members who are not currently identified as members of the
Ramius Group, (ii) enter into any negotiation, contract, arrangement,
understanding or relationship (legal or otherwise) with any third parties,
other
than members of the Ramius Group solely with respect to the members of the
Ramius Group, in connection with any of the foregoing or with respect to the
voting of any voting securities of the Company, (iii) or otherwise deposit
any
voting securities of the Company in any voting trust or subject any voting
securities of the Company to any arrangement or agreement with respect to the
voting of any voting securities of the Company, except as expressly set forth
in
this Agreement;
e. publicly
seek or publicly request permission to do any of the foregoing or to amend
or
waive any provision of Section 7 hereof (including any of clauses (a)-(f)
hereof), or make any public announcement with respect to any of the foregoing;
or
f. take,
or
cause others to take, any actions inconsistent with Section 7 hereof (including
any of clauses (a)-(f) hereof).
8. a. Notwithstanding
the foregoing, on and after the date that is 30 days prior to the last date
on
which a stockholder of the Company may nominate, in accordance with the
applicable procedures set forth in the Company’s Bylaws (which pursuant to the
Bylaws, as in effect as of the date of this Agreement, is the date that is
sixty
(60) days prior to the meeting of stockholders at which a member of the Board
will be elected), a person for election as a member of the Board at the 2008
Annual Meeting (such date, the “2008 Nomination
Deadline Date”),
the
Ramius Group shall not be prohibited from (i) nominating up to two persons
for election at the 2008 Annual Meeting to serve for a term of three years
expiring at the Company’s 2011 Annual Meeting of Stockholders in accordance with
the Company’s procedures set forth in its Bylaws for stockholders to nominate
persons for election to the Board, (ii) soliciting proxies with respect to
the voting securities of the Company with respect to such nominees, or
(iii) taking any actions in connection with the nomination of persons in
connection with the 2008 Annual Meeting, including requesting a stockholder
list
and related information, filing an amendment or amendments to its
Schedule 13D regarding the Common Stock of the Company as required by law
or taking any other action related to the solicitation of proxies or written
consents or making any public filings or announcements in furtherance thereof;
provided, however, in the event that either Xx. Xxxxx or Xx. Xxxxxxxxxx is
no
longer a member of the Board at the time the Ramius Group nominates persons
for
election in connection with the 2008 Annual Meeting, then the Ramius Group
shall
be permitted to nominate up to three persons for election at the 2008 Annual
Meeting; provided further, in the event that the size of the Board is increased
beyond nine members, the Ramius Group shall be permitted to nominate a number
of
persons for election at the 2008 Annual Meeting that is equal to the number
of
directors up for election at the 2008 Annual Meeting.
5
a. The
Company shall provide RCG Starboard Advisors, LLC, a Delaware limited liability
company (“RCG
Starboard”)
notice
(i) of the date of the 2008 Annual Meeting not less than 45 days prior to
the 2008 Nomination Deadline Date, and (ii) any amendment of the Company’s
Bylaws that changes the time period during which or procedures by which a
stockholder may, in accordance with the applicable procedures set forth in
the
Company’s Bylaws, nominate a person for election as a member of the Board at an
annual meeting of stockholders, within not more than four (4) business days
after such amendment (the “Bylaw
Amendment Notice”).
In
the event that any such amendment of the Company’s Bylaws results in a deadline
for either nomination of directors that is a date prior to the date of receipt
of the Bylaw Amendment Notice by RCG Starboard, then RCG Starboard shall have
ten (10) days from the date of its receipt of the Bylaw Amendment Notice to
nominate persons for election as members of the Board at the 2008 Annual
Meeting.
9. Following
the execution of this Agreement, the Company shall issue the press release
announcing the terms of this Agreement, in the form attached hereto as
Exhibit A (the “Press
Release”),
and
shall file a Current Report on Form 8-K with the SEC disclosing the terms of
this Agreement and attaching as exhibits this Agreement and the Press Release.
None of the Parties hereto will make any other public statements (including
in
any filing with the SEC or any other regulatory or governmental agency,
including any stock exchange) that are inconsistent with, or otherwise contrary
to, the statements in the Press Release. Neither the Ramius Group nor any of
its
members shall make any public statements (including in any filing with the
SEC
or any other regulatory or governmental agency, including any stock exchange),
except that it may amend its Schedule 13D regarding the Common Stock (as
amended, the “Schedule
13D”)
as
required by law and in a manner consistent with this Agreement and not
inconsistent with, or otherwise contrary to, the statements in the Press
Release.
10. The
Company shall reimburse the Ramius Group for its reasonable, documented
out-of-pocket fees and expenses incurred (including legal expenses) in
connection with the Schedule 13D, matters related to the 2007 Annual
Meeting and the negotiation and execution of this Agreement, provided that
such
reimbursement shall not exceed $37,500 in the aggregate.
11. The
Ramius Group shall cause its Affiliates to comply with the terms of this
Agreement. Each member of the Ramius Group listed herein, on behalf of himself
or itself, as applicable, represents and warrants to the Company that (a) as
of
the date hereof, the Ramius Group and each member of the Ramius Group
beneficially owns the number of shares of Common Stock as described opposite
his
or its name on Schedule A and Schedule A includes all Affiliates of any members
of the Ramius Group that own any securities of the Company beneficially or
of
record, (b) this Agreement has been duly and validly authorized, executed and
delivered by such member, and constitutes a valid and binding obligation and
agreement of such member, enforceable against such member in accordance with
its
terms, (c) each signatory to this Agreement by any member of the Ramius Group
has the authority to execute the Agreement on behalf of himself and the
applicable member of the Ramius Group associated with that signatory’s name, and
to bind such member of the Ramius Group to the terms hereof, (d) no member
of
the Ramius Group is party to any agreements regarding the voting of disposition
of shares of Common Stock, (e) the execution, delivery and performance of this
Agreement by each member of the Ramius Group does not and will not violate
or
conflict with (i) any law, rule, regulation, order, judgment or decree
applicable to it, or (ii) result in any breach or violation of or
constitute a default (or an event which with notice or lapse of time or both
could become a default) under or pursuant to, or result in the loss of a
material benefit under, or give any right of termination, amendment,
acceleration or cancellation of, any organizational document, agreement,
contract, commitment, understanding or arrangement to which such member is
a
party or by which it is bound, and (f) no consent, approval, authorization,
license or clearance of, or filing or registration with, or notification to,
any
court, legislative, executive or regulatory authority or agency is required
in
order to permit any member of the Ramius Group to perform such member’s
obligations under this Agreement, except for such as have been
obtained.
6
The
Company represents and warrants to the Ramius Group that (a) the Company has
the
corporate power and authority to execute the Agreement and to bind it thereto,
(b) this Agreement has been duly and validly authorized, executed and delivered
by the Company, constitutes a valid and binding obligation and agreement of
the
Company, and is enforceable against the Company in accordance with its terms,
(c) the execution, delivery and performance of this Agreement by the Company
does not and will not violate or conflict with (i) any law, rule,
regulation, order, judgment or decree applicable to it, or (ii) result in
any breach or violation of or constitute a default (or an event which with
notice or lapse of time or both could become a default) under or pursuant to,
or
result in the loss of a material benefit under, or give any right of
termination, amendment, acceleration or cancellation of, any organizational
document, agreement, contract, commitment, understanding or arrangement to
which
the Company is a party or by which it is bound and (d) no consent, approval,
authorization, license or clearance of, or filing or registration with, or
notification to, any court, legislative, executive or regulatory authority
or
agency is required in order to permit the Company to perform its obligations
under this Agreement, except for such as have been obtained.
12. This
Agreement constitutes the entire agreement between the Parties with respect
to
the subject matter hereof and supersedes all prior agreements understandings,
both written and oral, among the Parties with respect to the subject matter
hereof. No amendment or other modification of this Agreement may be made except
in writing signed by an authorized representative of each of the Company and
RCG
Starboard.
13. If
at any
time subsequent to the date hereof, any provision of this Agreement shall be
held by any court of competent jurisdiction to be illegal, void or
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon
the
legality or enforceability of any other provision of this
Agreement.
14. Each
of
the Ramius Group and the Company acknowledges and agrees that irreparable injury
to the other would occur in the event any its obligations under this Agreement
were not performed in accordance with the specific terms hereof or it otherwise
breached this Agreement and that such injury would not be adequately compensable
in damages. It is accordingly agreed by each of the Parties that a Party so
moving (the “Moving
Party”)
shall
each be entitled to specific enforcement of (without the necessity of posting
a
bond or other security or proving actual damages), and injunctive relief to
prevent any violation of (without the necessity of posting a bond or other
security or proving actual damages), the terms of this Agreement and the other
Parties hereto will not take action, directly or indirectly, in opposition
to
the Moving Party seeking such relief on the grounds that any other remedy or
relief is available at law or in equity. This Section 13 shall not in any way
affect a Party’s right to exercise its rights at law.
7
15. Certain
of the Parties have agreed to execute a confidentiality agreement simultaneous
with the execution of this Agreement regarding material nonpublic information
shared with the Ramius Group (the “Confidentiality
Agreement”).
Under
the terms of the Confidentiality Agreement, the Company has agreed that prior
to
the 2007 Annual Meeting it will not take any action that the Board considers
material without first advising a Ramius Nominee regarding such
action.
16. Each
member of the Ramius Group hereby irrevocably appoints RCG Starboard Advisors,
LLC as such member’s attorney-in-fact and representative (the “Ramius
Representative”),
in
such member’s place and stead, to do any and all things and to execute any and
all agreements, instruments and other documents and any amendments,
modifications and waivers hereto and thereto and to give and receive any and
all
notices or instructions in connection with this Agreement and the transactions
contemplated hereby and thereby. The Company shall be entitled to rely, as
being
binding on each member of the Ramius Group, upon any action taken by the Ramius
Representative or upon any document, notice, instruction or other writing given
or executed by the Ramius Representative. Each member of the Ramius Group
acknowledges and agrees that each agreement, covenant or other obligation of
the
Ramius Group hereunder shall be binding on such member of the Ramius
Group.
17. This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of Delaware without reference to the conflict of laws
principles thereof. Each of the Parties hereto irrevocably agrees that any
legal
action or proceeding with respect to this Agreement and the rights and
obligations arising hereunder, or for recognition and enforcement of any
judgment in respect of this Agreement and the rights and obligations arising
hereunder brought by the other party hereto or its successors or assigns, shall
be brought and determined exclusively in the Delaware Court of Chancery and
any
state appellate court therefrom within the State of Delaware (or, if the
Delaware Court of Chancery declines to accept, or determines that it does not
have, jurisdiction over a particular matter, any state or federal court within
the State of Delaware). Each of the Parties hereto hereby irrevocably submits
with regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to this
Agreement in any court other than the aforesaid courts. Each of the parties
hereto hereby irrevocably waives, and agrees not to assert in any action or
proceeding with respect to this Agreement, (i) any claim that it is not
personally subject to the jurisdiction of the above-named courts for any reason,
(ii) any claim that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise)
and (iii) to the fullest extent permitted by applicable legal requirements,
any claim that (A) the suit, action or proceeding in such court is brought
in an
inconvenient forum, (B) the venue of such suit, action or proceeding is improper
or (C) this Agreement, or the subject mater hereof, may not be enforced in
or by
such courts.
18. This
Agreement and any amendments hereto may be executed and delivered in one or
more
counterparts, and by the different parties hereto in separate counterparts,
each
of which when executed shall be deemed to be an original, but all of which
taken
together shall constitute one and the same agreement, and shall become effective
when counterparts have been signed by each party hereto and delivered to the
other parties hereto, it being understood that all parties need not sign the
same counterpart. In the event that any signature to this Agreement or any
amendment hereto is delivered by facsimile transmission or by e-mail delivery
of
a “.pdf” format data file, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is
executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof. At the request of any party each other
party shall promptly re-execute an original form of this Agreement or any
amendment hereto and deliver the same to the other party. No party hereto shall
raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data
file to deliver a signature to this Agreement or any amendment hereto or the
fact that such signature was transmitted or communicated through the use of
a
facsimile machine or e-mail delivery of a “.pdf” format data file as a defense
to the formation or enforceability of a contract, and each party hereto forever
waives any such defense.
8
19. Any
notices, consents, determinations, waivers or other communications required
or
permitted to be given under the terms of this Agreement must be in writing
and
will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) Business Day after
deposit with a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:
If
to the
Company:
Xxxxxx
Xxxx Corporation
000
Xxxxxxxxxxxx Xxxxx
Xxxxx,
Xxxxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxx
Facsimile:
000-000-0000
With
a
copy to:
Xxxxxx
Xxxxxx Xxxxxxxx LLP
000
X.
Xxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000-0000
Attention:
Xxxxx Xxxxxxx, Esq. and Xxxx X. Xxxx, Esq.
Facsimile:
312-902-1061
If
to the
Ramius Group or any member of the Ramius Group:
RCG
Starboard Advisors, LLC
c/o
Ramius Capital Group, L.L.C.
000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxx
Facsimile:
000-000-0000
With
a
copy to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx, Esq.
Facsimile:
(000) 000-0000
9
20. This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and assigns. No Party shall assign this Agreement
or
any rights or obligations hereunder without, with respect to any member of
the
Ramius Group, the prior written consent of the Company, and with respect to
the
Company, the prior written consent of RCG Starboard.
21. The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party. Unless the context otherwise requires, (a) all
references to Sections or Schedules are to Sections or Schedules contained
in or
attached to this Agreement, (b) words in the singular or plural include the
singular and plural and pronouns stated in either the masculine, the feminine
or
neuter gender shall include the masculine, feminine and neuter, and (c) the
use
of the word “including” in this Agreement shall be by way of example rather than
limitation.
[
The
remainder of this page intentionally left blank ]
10
IN
WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
day
and year first above written.
|
XXXXXX
XXXX CORPORATION
|
||||
|
By:
|
||||
|
Name:
|
Xxxxxx
X. Xxxxxxxx
|
|||
|
Title:
|
Chief
Executive Officer,
President,
Secretary
|
|||
|
PARCHE,
LLC
|
RCG
STARBOARD ADVISORS, LLC
|
||
|
By:
|
RCG
Starboard Advisors, LLC, its managing member
|
By:
|
Ramius
Capital Group, L.L.C., its sole
member
|
|
STARBOARD
VALUE AND OPPORTUNITY MASTER FUND LTD.
|
RAMIUS
CAPITAL GROUP, L.L.C.
By:
C4S & Co., L.L.C.,
as
managing member
|
|
|
By:
|
RCG
Starboard Advisors, LLC, its
investment
manager
|
C4S
& CO., L.L.C.
|
|
By:
|
||
|
Name:
|
Xxxxxxx
X. Xxxxxxx
|
|
|
Title:
|
Authorized
Signatory
|
|
|
XXXXXXX
X. XXXXXXX
|
XXXXX
X. XXXX
|
|
|
Individually
and as attorney-in-fact for Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx and Xxxxxx
X.
Xxxxxxx
|
|
XXXXXXX
X. XXXXX
|
||
|
Individually
and as attorney-in-fact for Xxxxxx Xxxxxxxxxx
|
11
|
By:
Starboard Value and Opportunity Master Fund Ltd.
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
Parche, LLC
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
RCG Enterprise, Ltd
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
RCG Starboard Advisors, LLC
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
Ramius Capital Group, L.L.C.
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
By:
C4S & CO., L.L.C.
By:
________________________________
Name:
Xxxxxxx X. Xxxxxxx
Title:
Authorized Signatory
|
12
SCHEDULE
A
The
Ramius Group
|
Parche,
LLC
|
397,720
|
|
Starboard
Value and Opportunity Master Fund Ltd.
|
2,088,020
|
|
RGC
Starboard Advisors, LLC
|
2,485,740
|
|
Ramius
Capital Group, L.L.C.
|
2,485,740
|
|
C4S
& CO., LLC
|
2,485,740
|
|
RCG
Enterprise, Ltd
|
0
|
|
Xxxxx
X. Xxxxx
|
2,485,740
|
|
Xxxxxx
X. Xxxxx
|
2,485,740
|
|
Xxxxxxx
X. Xxxxxxx
|
2,485,740
|
|
Xxxxxx
X. Xxxxxxx
|
2,485,740
|
|
Xxxxxx
Xxxxxxxxxx
|
0
|
|
Xxxxx
X. Xxxx
|
0
|
|
Xxxxxxx
X. Xxxxx
|
0
|
13
