EX-10.1.9
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b75146wiexv10w1w9.htm
EX-10.1.9
JOINT LITIGATION AGREEMENT
Exhibit 10.1.9
Xxxxxx Industries, Inc.
Xxxxxx Investment Management LLC
JOINT LITIGATION AGREEMENT
THIS
JOINT LITIGATION AGREEMENT (this “Agreement”) is made between Xxxxxx Industries,
Inc., a Delaware corporation (“WLT”), and Xxxxxx Investment Management LLC, a Delaware
limited liability company (“WIMLLC” and, together with WLT, the “Principals”), and
by each of them for their respective subsidiaries (the “Subsidiary Parties” and, together
with the Principals, the “Parties”), and the Parties’ respective directors, officers,
partners, employees, advisors, affiliates, representatives and agents (“Representatives”),
all to the extent reflected in this Agreement, effective as of April 17, 2009 (the
“Distribution Date”).
WHEREAS, WLT owns all the limited liability company units of WIMLLC;
WHEREAS, WLT, JWH Holding Company, LLC, a Delaware limited liability company
(“JWHHC”), WIMLLC and Hanover Capital Mortgage Holdings, Inc., a Maryland corporation
(“Hanover”), are party to that certain Second Amended and Restated Agreement and Plan of
Merger (as further amended, supplemented, restated or otherwise modified from time to time, the
“Merger Agreement”), pursuant to which in connection with related transactions, (i) certain
assets and businesses of JWHHC will be acquired by WLT and transferred to WIMLLC, (ii) prior to the
Effective Time on the Closing Date, WLT shall distribute all of the outstanding limited liability
company interests in WIMLLC to WLT’s stockholders (such time of the distribution, the
“Distribution” or the “Distribution Date”) and (iii) at the Effective Time, WIMLLC
shall merge into Hanover, with Hanover being the Surviving Corporation following the Merger.
Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the
Merger Agreement;
WHEREAS, the Parties have been involved in, or may in the future be involved in, pending or
potential claims and litigation made by third parties unaffiliated with the Principals, including,
without limitation, claims and litigation specifically referred to herein and in the schedules
hereto (collectively referred to as “Litigation”) that involve or could potentially involve
Parties that will not be affiliated with each other after the Distribution;
WHEREAS, the Parties and their Representatives have developed a substantial amount of evidence
and work product relating to the Litigation and have, prior to the effective date of the
Distribution, engaged in communications that are protected by the attorney work product,
attorney-client, and joint defense privileges;
WHEREAS, the Parties and their Representatives currently share certain information that is
protected as confidential, or under attorney-client privileges, or as attorney work product, and
the Parties agree that after the Distribution such information should continue to be treated as
confidential, or protected by attorney work product or attorney-client privileges;
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WHEREAS, the Parties are willing to, and are willing to cause their respective Representatives
to, provide access to such evidence and work product on certain conditions; and
WHEREAS, the Parties desire to allocate responsibilities for the Litigation as provided herein
and to share insurance coverages and indemnification from third parties that may be available to
the Parties;
NOW, THEREFORE, in consideration of the foregoing premises and of the mutual agreements and
for other good and valuable consideration hereinafter set forth, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as
follows:
1. Statement of Intent. The Parties acknowledge that the intent of the Distribution
will be to separate the mortgage lending, mortgage servicing and insurance businesses of WIMLLC
from the homebuilding, coal mining, natural gas and other businesses of WLT. The Parties note that
such businesses are, and have historically been, unique and separate businesses, and that it is the
intent of the Parties that the Litigation referred to herein, and any subsequent Litigation related
to any of the businesses of any of the Parties, should be allocated as much as possible to the type
of business out of which the Litigation arose. Thus, it is the intent of the Parties that WIMLLC
and its Subsidiary Parties be responsible for all Litigation arising from the mortgage lending,
mortgage servicing and insurance business of WIMLLC, and that WLT and its Subsidiary Parties be
responsible for all Litigation arising from the homebuilding, coal mining, natural gas and other
businesses, including the business of Cardem Insurance Co. Ltd. (except to the extent such
Litigation relates to and arises from the mortgage lending, mortgage servicing or insurance
businesses of WIMLLC), and that Litigation that relates to both WIMLLC and WLT businesses shall be
allocated and shared as agreed to by the Principals, or as determined by the Arbitrator as set out
below.
2. Allocation of Responsibility for Litigation and Claims.
| | (a) | | Schedule A Litigation. WLT shall indemnify, defend and hold harmless
WIMLLC and its Subsidiary Parties and its and their Representatives as of and
following the effective time of the Distribution (the “WIMLLC Corporate
Entities”), from and against any costs, expenses and damages assessed as a result
of the Litigation listed on Schedule A hereto. Such Litigation shall be referred to
herein as the “Schedule A Litigation”. |
| |
| | (b) | | Schedule B Litigation. WIMLLC shall indemnify, defend and hold
harmless WLT and its Subsidiary Parties and its and their Representatives as of and
following the effective time of the Distribution (the “WLT Corporate
Entities”), from and against any costs, expenses and damages assessed as a result
of the Litigation listed on Schedule B hereto. Such Litigation shall be referred to
herein as the “Schedule B Litigation”. |
| |
| | (c) | | Schedule C Litigation. The Parties shall share the costs, expenses
and damages assessed as a result of the Litigation listed on Schedule C hereto,
according to |
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| | | | the allocations set out in Schedule C hereto, or, if no allocations have been
agreed between the Principals, then in such amounts as the Principals may agree in
the future, or as their interests in the Litigation may ultimately be decided (the
“Allocated Share”). Such Litigation shall be referred to herein as the
“Schedule C Litigation”. |
3. Future Litigation.
| | (a) | | With respect to future Litigation, as soon as practicable after the
identification of such Litigation by any Party, the Principals and any other relevant
Party shall consult in good faith for the purpose of securing an agreement between the
Principals regarding an appropriate allocation of responsibility for such Litigation
among the Parties in accordance with the statement of intent set forth in Section 1 of
this Agreement. It is the intent of the Parties that the responsibility for the
Litigation be assumed fully by one Party, or that the Principals agree to allocate
responsibility for such Litigation among the Parties in the same fashion as envisioned
for the Schedule C Litigation. |
| |
| | (b) | | If the Principals are unable to allocate responsibility for any Litigation
within a reasonable period of time following identification of such Litigation, but in
any event by the earlier to occur of (x) the date by which action must be taken in
connection with such Litigation to avoid prejudice to one of the Parties in connection
therewith or (y) the 30th day after identification of the Litigation, then the
Principals may agree that such allocations shall be as determined by any third party
(such as an outside law firm) who has been granted authority by the Principals to
determine such allocation, or any party may elect to cause any such allocation of
responsibility to be determined by an Arbitrator as described in Section 9 hereof. |
4. Fees and Expenses.
| | (a) | | Except as provided herein or otherwise agreed among the Principals, the
Parties agree to pay their own expenses in connection with any Litigation, including
attorneys’ fees and the fees and expenses of their respective affiliates and agents. |
| |
| | (b) | | WLT shall be responsible for all out-of-pocket costs and expenses associated
with the Schedule A Litigation, including the costs of depositions, testimony and
discovery imposed on WIMLLC and its Subsidiary Parties and their respective
Representatives. For the avoidance of doubt, WIMLLC and its Subsidiary Parties shall,
and shall cause their respective Representatives to, bear the costs of their
respective internal legal counsel and other personnel. |
| |
| | (c) | | WIMLLC shall be responsible for all out-of-pocket costs and expenses
associated with the Schedule B Litigation, including the costs of depositions,
testimony and discovery imposed on WLT and its Subsidiary Parties and their
|
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| | | | respective Representatives. For the avoidance of doubt, WLT and its Subsidiary
Parties shall, and shall cause their respective Representatives to, bear the costs
of their respective internal legal counsel and other personnel. |
| |
| | (d) | | Except as provided on Schedule C, each of the Principals agrees to share the
expenses of the Schedule C Litigation in proportion to their Allocated Share, with
each bearing their own expenses as they are incurred, sharing (in proportion to their
Allocated Share) other more extraordinary expenses (such as expert witness fees), and
then reconciling their expenses incurred for their common benefit when any Litigation
is finally concluded or at such other time as agreed by the Principals. |
| |
| | (e) | | The Principals shall regularly discuss the need for payments hereunder, or to
offset the payments incurred by the Subsidiary Parties. Unless otherwise agreed by
the Principals, with respect to any specific Litigation or series of related
Litigations, no payments hereunder are required until the amount to be paid is greater
than $10,000 (unless the Principals agree on a final settlement of the amounts to be
paid in respect of such Litigation or series of related Litigations under this
Agreement), or until the amount owed to either Principal (including, for this purpose,
its Subsidiary Parties and its and their Representatives) hereunder exceeds $50,000.
The Principals shall consult with each other at least once each quarter during the
first year following the execution of this Agreement and semi-annually thereafter
regarding any payments required or proposed to be made hereunder and any proposed
modification of the terms of this Agreement or the schedules hereto. |
| |
| | (f) | | Any amounts owing hereunder shall, to the extent not paid within 30 days
after any agreement by the Principals regarding payment, bear interest at the Prime
Rate until such amounts are paid in full. As used herein, “Prime Rate” shall mean the
fluctuating interest rate announced from time to time as published in the Wall Street
Journal as the U.S. Prime Rate. |
5. Protection of Information.
| | (a) | | For purposes of this Agreement, the Parties record that they have a common
interest in the Litigation, recognizing that they were under common control and
ownership in connection with prior actions and communications with respect to the
Litigation. |
| |
| | (b) | | The Parties agree to share evidence and work product in connection with the
Litigation, including with their respective counsel, provided, however, that in the
event of disagreements regarding whether to settle any Litigation, the Parties shall
be free to settle any such Litigation, provided that the work product, evidence,
privileged materials and confidential information retained by the settling Party shall
not be shared with any third parties without the consent of any Party that would have
the right to prevent the disclosure of any such |
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| | | | information had the Distribution not occurred. |
| |
| | (c) | | Each Party agrees to protect, and shall cause its Representatives to protect,
any work product, evidence, privileged materials and confidential information related
to the Litigation against disclosure as if it were their own information and to assert
the joint litigation privilege as a bar to the production of any such information. |
6. Prior Coverages and Indemnification.
| | (i) | | With respect to Litigation or other liabilities against a
Party and its Representatives (such Party, an “Exposed Entity”) that are or
may be, in the reasonable judgment of the Principal that is affiliated with
such Exposed Entity, covered by insurance policies held by an unaffiliated
Party or by indemnification otherwise available to an unaffiliated Party (a
“Covered Entity”) in respect of periods prior to the Distribution Date (“Prior
Coverage”), such Exposed Entity may pursue, or, to the extent possible, such
Covered Entity shall be authorized to pursue, claims in respect of such
Litigation or other liabilities on behalf of the Exposed Entity in the amounts
and in accordance with the terms of such Prior Coverage, provided that such
claims relate to matters that arose on or prior to the Distribution Date. Each
Principal affiliated with a Covered Entity agrees that it will not, and will
not permit any affiliate (including any Covered Entity) to, terminate any
Prior Coverage without the other Principal’s consent. Promptly upon receipt
of the proceeds of any such Prior Coverage resulting from such claims, the
Covered Entity shall cause such proceeds to be paid to the Exposed Entity;
provided that the amount of such proceeds paid by the Covered Entity to the
Exposed Entity shall be, without duplication, (i) reduced by the amount of any
fees and expenses reasonably incurred, or incurred with the Exposed Entity’s
written consent, by the Covered Entity in pursuit of such claims, (ii)
adjusted in good faith by the Covered Entity to reflect the present value of
any increased fees and expenses associated with continuing to maintain the
policy or indemnity from which the Prior Coverage arises that is attributable
to the pursuit of such claim and (iii) adjusted in good faith by the Covered
Entity to reflect any likely benefit to the Covered Entity attributable to the
pursuit of such claim including, without limitation, any estimated benefits
associated with the satisfaction of a deductible under any policy or indemnity
providing the Prior Coverage. |
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| | (ii) | | Any Covered Entity pursuing a claim for Prior Coverage will,
or will cause its affiliates to, diligently pursue all claims for Prior
Coverage at the Exposed Entity’s expense, provided that in no event shall the |
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| | | | Covered Entity be obligated to litigate or pursue any other extraordinary
remedies against any insurer or indemnitor, except as provided in (iii)
below. The Principals agree to consult in good faith with respect to the
pursuit of any claim for Prior Coverage hereunder. Each Party shall, and
shall cause its Representatives to, take all reasonable and necessary
steps not inconsistent with its or their own interests to maintain the
availability of Prior Coverage to the Parties and their Representatives. |
| |
| | (iii) | | If the Principal affiliated with an Exposed Entity, in its
sole discretion, determines that it is necessary to pursue litigation or make
a claim for Prior Coverage against any insurer or indemnitor in order to
protect its and its affiliates’ and Representatives’ rights hereunder with
respect to any claim, it shall so advise the Principal affiliated with the
applicable Covered Entity, and the Principal affiliated with the Exposed
Entity, the Exposed Entity and their respective Representatives may pursue
such litigation or claim. |
| | (c) | | WIMLLC Policies |
| |
| | | | WLT shall cause to be transferred all stand-alone insurance policies applicable to
WIMLLC and its subsidiaries, subject to insurance company approval and agreement to
transfer. |
| | (d) | | First Come/First Served |
| |
| | | | The Parties acknowledge that the provisions set forth in Section 6(a) hereof could
result in the exhaustion of Prior Coverage policy or indemnity limits by one or a
small number of Exposed Parties as a result of the “first come/first served” nature
of the provision. With respect to the application of the provisions set forth in
Section 6(a), the Parties agree to, and shall cause their respective
Representatives to, act in good faith and to avoid taking any actions for the
purpose of, or with the intention of, accelerating or delaying claims payments or
losses in order to obtain some advantage vis-à-vis the other Parties and their
Representatives in connection with the Prior Coverage, including, without
limitation, anticipated exhaustion of applicable Prior Coverage limits and the
anticipated costs associated with satisfying Prior Coverage deductible
requirements. In addition, the Parties shall not, and shall cause their
Representatives not to, enter into any written settlement agreement with any
insurer that has the effect of reducing Prior Coverage limits or increasing Prior
Coverage deductibles, including “tipping basket” deductibles that would otherwise
be potentially available under this Agreement to any Party and its Representatives
without first giving the affected Party at least thirty (30) days’ advance written
notice of its intention to enter into such settlement accompanied by a copy of the
proposed settlement so that the other Party may have an opportunity to consider the
impact of such proposed settlement on its interests and those of its
Representatives. The Parties agree to, and shall cause their |
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| | | | respective Representatives to, consult with each other and negotiate in good faith
about such impacts. |
7. Directors and Officers Liability Insurance. For the six-year period commencing
immediately after the Distribution Date, WLT shall maintain in effect WLT’s current
directors’ and officers’ liability insurance policies providing coverage for acts or
omissions occurring prior to the Distribution Date with respect to those Persons who are
currently covered by WLT’s directors’ and officers’ liability insurance policy on terms and
at limits no less favorable to WIMLLC’s current and former directors and officers currently
covered by policies in effect on the Distribution Date; provided that, if WLT’s current
directors’ and officers’ liability insurance expires, is terminated or is canceled during
such six-year period, WLT shall obtain directors’ and officers’ liability insurance covering
such acts or omissions with respect to each such Person on terms and at limits no less
favorable to WIMLLC’s directors and officers currently covered by policies in effect
immediately prior to the date of such expiration, termination or cancellation (the “Existing
D&O Policy”); provided further, that: (i) WLT may substitute for the Existing D&O Policy a
policy or policies of comparable coverage, including a “tail” insurance policy; and (ii) WLT
shall not be required to pay annual premiums for any substitute or “tail” policies in excess
of two times the annual premiums paid for the Existing D&O Policy as of the Distribution
Date (the “Maximum Premium”). In the event any future annual premiums for the Existing D&O
Policy (or any substitute policies) exceed the Maximum Premium, WLT shall be entitled to
reduce the amount of coverage of the Existing D&O Policy (or any substitute or “tail”
policies) to the amount of coverage that can be obtained for a premium equal to the Maximum
Premium. This Section is intended to benefit each of the current and former directors and
officers of WIMLLC covered by the Existing D&O Policy as of the Distribution Date, and shall
be enforceable by each such Person and his or her heirs and representatives.
8. Further Assurances.
| | (a) | | Each Party shall, and shall cause its respective Representatives to (i)
cooperate with each other Party and its Representatives, (ii) use commercially
reasonable efforts to take or cause to be taken all appropriate actions required of
such Party and its Representatives hereunder, (iii) do or cause to be done all things
reasonably necessary or appropriate to effectuate the provisions and purposes of this
Agreement and the transactions contemplated hereby (including, without limitation, the
execution of additional documents or instruments of any kind and the obtaining of
consents that, in each case, may be reasonably necessary or appropriate in furtherance
of the provisions hereof) and (iv) take all such other actions as may be reasonably
requested by another Party, for itself and its Representatives, from time to time
consistent with and in furtherance of the terms of this Agreement. Each Party shall,
and shall cause its Representatives to, furnish to the other Parties all information
and documentation as may reasonably be required in the pursuit of any Litigation or
litigation under this Section. Each Principal shall regularly, and in any event no
less frequently than quarterly or as otherwise agreed by the Principals, consult with
the other with |
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| | | | respect to any Litigation, and each Principal shall promptly advise the other as to
any material developments. Each of the Principals shall take all action
reasonably required to ensure that any former subsidiary shall have access to the
Prior Coverage following any merger or liquidation of either of the Principals. |
| |
| | (b) | | By way of enumeration and not of limitation, each Party shall, and shall
cause its Representatives to, upon the reasonable request of any other Party (whether
for itself or on behalf of its Representatives), promptly: (i) provide copies of
insurance policies or evidence of the existence of insurance to any other Party; (ii)
provide information reasonably necessary or helpful to any other Party and its
Representatives (including, without limitation, currently valued loss runs on an
annual basis for all lines of insurance for five calendar years after the Distribution
Date) in connection with any requesting Party’s efforts to obtain insurance coverage;
(iii) provide information to any other Party regarding amounts applied to the limits
of policies or self-insured retentions potentially applicable to both, and the basis
for the application of such amounts to such limits, so that each Party can monitor the
exhaustion of such limits; and (iv) execute further reasonable assignments or allow
any other Party to reasonably pursue reasonable claims in its name (subject to rights
of participation and consultation in respect of the pursuit of such claims) at the
sole expense of the requesting Party, including by means of arbitration or litigation,
to the extent necessary or helpful to the other Party’s efforts to obtain Prior
Coverage to which it or its Representatives are entitled under this Agreement. |
| |
| | (c) | | Each Party shall, and shall cause its Representatives to, reimburse each
other for out-of-pocket costs and expenses reasonably incurred in connection with
providing cooperation and assistance to the other pursuant to this Agreement in
accordance with Section 4 of this Agreement. |
9. Arbitration.
| | (a) | | Commencement. In the event of any dispute arising out of or in
connection with this Agreement or relating to the subject matter hereof (a “Dispute”),
including without limitation a breach, default, misrepresentation or failure to agree
pursuant to any provision which expressly requires agreement among the Parties, the
disputing Party shall notify the other relevant Parties and the Principals of, and
shall describe in reasonable detail, the Dispute, and shall indicate in such notice
that such disputing Party wishes to resolve such Dispute by mediation or arbitration.
If the relevant Parties are unable to reach a mutually acceptable resolution of the
Dispute within thirty (30) days of the receipt of notice by the relevant Parties, any
of the relevant Parties may elect to submit the Dispute for final, binding settlement
by arbitration by a single arbitrator (the “Arbitrator”) by delivering a notice of
such election to each of the other relevant Parties and by requesting from the
International Institute for Conflict Prevention and Resolution (“CPR”), simultaneously
with or as soon as reasonably practical (and in no event more than ten (10) days)
following |
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| | | | delivery of such notice of election, a list of qualified arbitrators pursuant to
paragraph (b) of this Section 9. |
| |
| | (b) | | Rules of Arbitration. Such arbitration shall be presided over by a
sole arbitrator (the “Arbitrator”), appointed by mutual agreement of the relevant
Parties from a list proposed by CPR in response to the request described in paragraph
(a) of this Section 9 of no less than 10 members of the CPR Panels of Distinguished
Neutrals qualified to arbitrate the Dispute. If the relevant Parties are unable to
agree upon a sole arbitrator prior to the later to occur of (i) the thirtieth
(30th) day after receipt by the all relevant Parties of the notice of
intent to arbitrate and (ii) the tenth (10th) day after receipt by the
relevant Parties of a proposed list of arbitrators from CPR, the sole arbitrator shall
be chosen by CPR in accordance with Article 6 of the 2007 CPR Rules for
Non-Administered Arbitration (the “Rules”). |
| |
| | (c) | | Arbitration Procedure. The place and situs of arbitration shall be
Tampa, Florida, or such other location as the relevant Parties may agree to. The
arbitration shall be conducted in accordance with the Rules. The parties agree to
facilitate the arbitration by (i) making available to each other and to the Arbitrator
for inspection and extraction all documents, books and records as the Arbitrator shall
determine to be relevant to the dispute, (ii) making personnel under their control
available to other parties and the Arbitrator and (iii) observing strictly the time
periods established by the Arbitrator for the submission of evidence and pleadings.
The Arbitrator may impose sanctions in its discretion to enforce compliance with
discovery and other obligations imposed by the Arbitrator and the Rules. Once the
Arbitrator has been selected, such arbitration shall be the exclusive manner pursuant
to which any Dispute shall or may be resolved except by mutual agreement of the
relevant Parties. The Arbitrator shall have the power to render declaratory judgments
in accordance with the Rules, to grant, temporary, preliminary and permanent relief,
including, without limitation, injunctive relief and specific performance, as well as
to award monetary claims or to render claims that the Arbitrator deems equitable and
just, provided that the Arbitrator shall not have the power to act (x) outside the
prescribed scope of this Agreement, or (y) without providing an opportunity to each
Party to be represented before the Arbitrator. The Arbitrator shall endeavor to
render final decisions in writing within sixty (60) days of the selection of the
Arbitrator. |
| |
| | (d) | | Arbitration Award; Enforcement. The Arbitrator’s final decision
shall be delivered in writing to each of the relevant Parties. The Arbitrator may
allocate the costs and expenses of the proceedings between the relevant Parties and
shall award interest as the Arbitrator deems appropriate. The arbitration judgment
shall be final and binding on each of the relevant Parties. Judgment on the
Arbitrator’s award may be entered in any court of competent jurisdiction by any of the
relevant Parties. |
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| | 10. | | Immunities. This Agreement may not be introduced in any court to
establish any fact of this Agreement except to permit any Party hereto to secure its
rights and the rights of its Representatives under this Agreement. The terms of this
Agreement have been reached as a settlement between the Parties and its terms are
without prejudice to the ability of any Party hereto to assert claims against any third
party, or defend itself against claims asserted it by any third party. |
| |
| | 11. | | Authority. Each Principal represents and warrants that it has the
right, power and authority to enter into this Joint Litigation Agreement, and to cause
its affiliates, including, without limitation, its Subsidiary Parties, and its
Representatives to abide by this Agreement to the extent necessary to enforce the terms
hereof as fully as if they were signatories to this Agreement. |
| |
| | 12. | | Amendments. This Agreement may be amended, supplemented, restated or
otherwise modified by the mutual written agreement of the Principals, and all parties
who derive rights under this Agreement shall be bound by such written agreement. This
Agreement may not be discharged except by performance in accordance with its terms or
by a writing signed by the Party that would otherwise benefit from such performance if
properly discharged. |
| |
| | 13. | | Assignments. This Agreement shall be binding on the successors and
assigns of the Principals and their respective Subsidiary Parties, and each Party
hereto acknowledges and consents to the assignment, by operation of law or otherwise,
of this Agreement to the successor in interest of WIMLLC pursuant to the Merger, and
this Agreement shall remain binding and in full force and effect following the Merger. |
| |
| | 14. | | Third Party Rights. This Agreement shall not confer any rights or
benefit upon any person or entity other than the Parties and their respective
successors and permitted assigns. |
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| | 15. | | Legal Enforceability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be declared to be
invalid, unenforceable or void, such declaration shall not have the effect of
invalidating or voiding the remainder of this Agreement, it being the intent and
agreement of the Parties that this Agreement shall be deemed amended by modifying such
provision to the extent necessary to render it valid, legal and enforceable while
preserving its intent or, if such modification is not possible, by substituting
therefor another provision that is valid, legal and enforceable and that achieves the
same objective. Any such prohibition or unenforceability in any jurisdiction shall not
invalidate, render unenforceable such provision in any other jurisdiction. |
| |
| | 16. | | Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts made and to
be performed therein. Each of the Parties hereby waive personal service of |
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| | | | any and all process upon it and consent that all such service of process may be made
by registered or certified mail (return receipt requested) directed to the Principal
affiliated with such Party at its address set forth on the signature pages below,
and service so made shall be deemed to be completed three (3) days after the same
shall have been so deposited in the U.S. Mails, or on one day following delivery by
email or by telecopy as provided below, with evidence of delivery, provided that any
delivery by email or telecopy shall be followed by a telephone call alerting the
recipient to the notice being so delivered. |
[Signature pages to follow]
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IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the day and
year first above written.
| | | | | | | | | |
| XXXXXX INDUSTRIES, INC. | | | | XXXXXX INVESTMENT MANAGEMENT LLC |
|
| | | | | | | | |
| Signature:
| | /s/ Xxxxxx X. Xxxxxxx
| | | | Signature:
| | /s/ Xxxx X. X’Xxxxx |
|
| |
| | | | | | |
| Name:
| | Xxxxxx X. Xxxxxxx
| | | | Name:
| | Xxxx X. X’Xxxxx |
| Title:
| | Vice Chairman and Chief Financial Officer
Officer
| | | | Title:
| | President and Chief Executive Officer |
| Address:
| | 0000 X. Xxx Xxxxx Xxxxxxxxx
Xxxxx, XX 00000
| | | | Address:
| | 0000 X. Xxx Xxxxx Xxxx., 0xx Xxxxx
Xxxxx, XX 00000 |
| Facsimile:
| | 000-000-0000
| | | | Facsimile:
| | 000-000-0000 |
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