JOINT FILING AND SOLICITATION AGREEMENT
Exhibit
99.1
WHEREAS,
certain of the undersigned are stockholders, direct or beneficial, of Whitney
Information Network, Inc, a Colorado Corporation (the “Company”);
WHEREAS,
Kingstown Partners L.P., a Delaware limited partnership (“Kingstown”), Kingstown
Capital Partners LLC, a Delaware limited liability company (“Kingstown GP”),
Xxxxxxx Xxxxxxx, Xxx Xxxxxx, Kingstown Capital Management L.P., a Delaware
limited partnership (“Kingstown Capital”), and Kingstown Management GP LLC, a
Delaware limited liability company (“Kingstown Management”), Xxxxx Xxxxxxxxx and
J. Xxxxxx Xxxxx wish to form a group for the purpose of seeking representation
on the Board of Directors of the Company at the 2009 annual meeting of
stockholders of the Company, or any other meeting of stockholders held in lieu
thereof, and any adjournments, postponements, reschedulings or continuations
thereof (the “2009 Annual Meeting”) and for the purpose of taking all other
action necessary to achieve the foregoing.
NOW, IT
IS AGREED, this 11th day of
August 2009 by the parties hereto:
1. In
accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), each of the undersigned (collectively, the
“Group”) agrees to the joint filing on behalf of each of them of statements on
Schedule 13D, and any amendments thereto, with respect to the securities of the
Company. Each member of the Group shall be responsible for the
accuracy and completeness of his/its own disclosure therein, and is not
responsible for the accuracy and completeness of the information concerning the
other members, unless such member knows or has reason to know that such
information is inaccurate. Kingstown or its representative shall
provide each member of the Group with copies of all Schedule 13D filings and
other public filings to be filed on behalf of such member at least 24 hours
prior to the filing or submission thereof.
2. So
long as this agreement is in effect, each of the undersigned shall provide
written notice to Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP (“Xxxxxx”)
of (i) any of their purchases or sales of securities of the Company; or (ii) any
securities of the Company over which they acquire or dispose of beneficial
ownership. Notice shall be given no later than 24 hours after each
such transaction.
3. Each
of the undersigned agrees to form the Group for the purpose of (i) soliciting
proxies or written consents for the election of the persons nominated by the
Group to the Board of Directors of the Company at the 2009 Annual Meeting, (ii)
taking such other actions as the parties deem advisable, and (iii) taking all
other action necessary or advisable to achieve the foregoing.
4. Kingstwon
shall have the right to pre-approve all expenses incurred in connection with the
Group’s activities and agree to pay directly all such pre-approved
expenses.
5. Each
of the undersigned agrees that any SEC filing, press release or stockholder
communication proposed to be made or issued by the Group or any member of the
Group in connection with the Group’s activities set forth in Section 4 shall be
first approved by Kingstown, or its representatives, which approval shall not be
unreasonably withheld.
6. The
relationship of the parties hereto shall be limited to carrying on the business
of the Group in accordance with the terms of this Agreement. Such
relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing
herein shall be construed to authorize any party to act as an agent for any
other party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party’s right to
purchase or sell securities of the Company, as he/it deems appropriate, in
his/its sole discretion, provided that all such sales are made in compliance
with all applicable securities laws.
7. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, taken together, shall constitute but one and the same
instrument, which may be sufficiently evidenced by one counterpart.
8. In
the event of any dispute arising out of the provisions of this Agreement or
their investment in the Company, the parties hereto consent and submit to the
exclusive jurisdiction of the Federal and State Courts in the State of New
York.
9. Any
party hereto may terminate his/its obligations under this Agreement on 24 hours’
written notice to all other parties, with a copy by fax to Xxxxxx Xxxxxxx at
Xxxxxx, Fax No. (000) 000-0000.
10. Each
party acknowledges that Xxxxxx shall act as counsel for both the Group and
Kingstown and its affiliates relating to their investment in the
Company.
11. Each
of the undersigned parties hereby agrees that this Agreement shall be filed as
an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the
Exchange Act.
2
Whitney
Information Network, Inc. Joint Filing and Solicitation Agreement
Signature
Page
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first above written.
Dated:
August 11, 2009
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KINGSTOWN
PARTNERS L.P.
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KINGSTOWN
MANAGEMENT GP LLC
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By:
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Kingstown
Capital Partners LLC
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By:
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/s/
Xxxxxxx Xxxxxxx
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its
general partner
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Xxxxxxx
Xxxxxxx
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Managing
Member
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By:
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/s/
Xxxxxxx Xxxxxxx
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Xxxxxxx
Xxxxxxx
Managing
Member
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KINGSTOWN
CAPITAL PARTNERS LLC
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/s/
Xxxxxxx Xxxxxxx
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| XXXXXXX XXXXXXX, individually and as attorney-in-fact for Xxxxx Xxxxxxxxx, J. Xxxxxx Xxxxx, Xxxxxxxxx Capital Partners, LP, SGAP Xxxxx Trust and JDD Trust | |||
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By:
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/s/
Xxxxxxx Xxxxxxx
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Xxxxxxx
Xxxxxxx
Managing
Member
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KINGSTOWN
CAPITAL
MANAGEMENT
L.P
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/s/
Xxx Xxxxxx
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XXX
XXXXXX
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By:
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Kingstown
Management GP LLC
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its
general partner
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By:
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/s/
Xxxxxxx Xxxxxxx
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Xxxxxxx
Xxxxxxx
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Managing
Member
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