Exhibit 10.2
AMENDMENT TO NOMINATING AGREEMENT
This Amendment to Nominating Agreement is dated as of July 12, 2005 (this
"Amendment") by and between Xxxxxxx Company, a Michigan corporation (the
"Buyer") and Xxxxx Xxxxx (the "Shareholder").
WHEREAS the Buyer and Shareholder entered into a Nominating Agreement,
dated as of November 14, 2004 (the "Nominating Agreement"), which provided,
among other things, that the Buyer agreed to provide Shareholder with the right
to designate directors to the Board of Directors of Buyer in the manner and time
set forth in the Nominating Agreement; and
WHEREAS the Buyer and Shareholder wish to amend the Nominating Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants, promises and representations set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are acknowledged,
the parties agree as follows:
1. Amendments.
(a) Section 2 of the Nominating Agreement is hereby deleted in its entirety
and replaced by the following:
2. Director Nomination Rights.
(a) On the Closing Date, the Board shall appoint Shareholder to the
Board. The parties acknowledge and agree that the Shareholder shall be appointed
to the Board to serve for a term expiring at Buyer's 2007 annual meeting term.
Notwithstanding the foregoing, the appointment of Shareholder pursuant to this
Section 2(a), (i) shall be subject to the approval process of Buyer's Nominating
& Governance Committee, consistent with Buyer's Corporate Governance Guidelines,
and (ii) must have the requisite qualifications as determined in good faith by
the Nominating & Governance Committee. Nothing in this Section 2 shall prevent
the Board from acting in good faith in accordance with its Corporate Governance
Guidelines while giving due consideration to the intent of this Agreement.
(b) After the Closing Date, Shareholder shall have the right to
designate one Independent candidate to the Board, and the Board shall appoint
the designated Independent candidate to the Board whenever such Independent
candidate is designated by Shareholder. The parties acknowledge and agree that
any such Independent candidate shall be appointed to the Board to serve for a
term that complies with the requirements for the staggered terms and apportioned
classes of Directors set forth in Buyer's By-laws. Notwithstanding the
foregoing,
the appointment of any shareholder designated candidate pursuant to this Section
2(b), (i) shall be subject to the approval process of Buyer's Nominating &
Governance Committee, consistent with Buyer's Corporate Governance Guidelines,
and (ii) must have the requisite qualifications as determined in good faith by
the Nominating & Governance Committee; provided, however, that if for any reason
the conditions set forth in clauses (i) and (ii) are not satisfied, Shareholder
shall have the right to designate an alternate person or persons to be so
nominated. Nothing in this Section 2 shall prevent the Board from acting in good
faith in accordance with its Corporate Governance Guidelines while giving due
consideration to the intent of this Agreement.
(c) After the Closing Date, should there exist or occur any vacancy on
the Board as a result of death, disability, retirement, resignation, removal or
any other reason, including if any current Director shall not be nominated for
re-election (other than any vacancy resulting from the death, disability,
retirement, resignation or removal of Shareholder or any Shareholder Director),
the Board shall appoint one additional Independent candidate designated by
Shareholder to the Board to serve for a term of office continuing only until the
next election of the class of Directors in which the vacancy occurs. The parties
acknowledge and agree that such Independent candidate shall be nominated to the
same class as the Director that such Independent candidate is replacing.
Notwithstanding the foregoing, the appointment of a Shareholder-designated
candidate pursuant to this Section 2(c), (i) shall be subject to the approval
process of Buyer's Nominating & Governance Committee, consistent with Buyer's
Corporate Governance Guidelines, and (ii) must have the requisite qualifications
as determined in good faith by the Nominating & Governance Committee; provided,
however, that if for any reason the conditions set forth in clauses (i) and (ii)
are not satisfied, Shareholder shall have the right to designate an alternate
person or persons to be so nominated. Nothing in this Section 2 shall prevent
the Board from acting in good faith in accordance with its Corporate Governance
Guidelines while giving due consideration to the intent of this Agreement.
(d) Following the initial appointments referenced in Sections 2 (a),
(b) and (c) above, Buyer shall nominate for the Board at the next applicable
annual meeting of the shareholders of Buyer, any Independent candidates
designated by Shareholder pursuant to the terms of this Agreement (each such
designated Independent candidate a "SHAREHOLDER DIRECTOR" and collectively, the
"SHAREHOLDER DIRECTORS"); provided, however, that Buyer shall only be obligated
to nominate any Shareholder Director at the annual meeting at which the term of
the class of Directors to which any Shareholder Director belongs has expired and
such class of Directors is up for election. In accordance with its Corporate
Governance Guidelines, the Board shall submit in writing the name of any
Shareholder Director to the Buyer Nominating & Governance Committee for election
to the Board. The Company shall use its reasonable best efforts (i) to cause the
Buyer Nominating & Governance Committee to include the name of the Shareholder
Directors so submitted among its nominees for election to the Board and (ii) to
cause the Board to unanimously recommend that the shareholders of Buyer vote in
favor of the Shareholder Directors; provided, however, that if for any reason
the conditions set forth in clauses (i) and (ii) are not satisfied, Shareholder
shall have the right to designate an alternate person or persons to be so
nominated. Nothing in this Section 2 shall prevent the Board from acting in good
faith in accordance with its Corporate Governance Guidelines while giving due
consideration to the intent of this Agreement.
(e) Following the initial appointment of Shareholder referenced in
Section 2(a) above, Buyer shall nominate Shareholder at each applicable annual
meeting of the shareholders of Buyer to serve on the Board; provided, however,
the Buyer shall only be obligated to nominate the Shareholder at each annual
meeting at which the term of the class of Directors to which Shareholder belongs
has expired and such class of Directors is up for election. In accordance with
its Corporate Governance Guidelines, the Board shall submit in writing
Shareholder's name to the Buyer Nominating & Governance Committee for election
to the Board. The Company shall use its reasonable best efforts (i) to cause the
Buyer Nominating & Governance Committee to include the Shareholder so submitted
among its nominees for election to the Board and (ii) to cause the Board to
unanimously recommend that the shareholders of Buyer to vote in favor of
Shareholder. Nothing in this Section 2 shall prevent the Board from acting in
good faith in accordance with its Corporate Governance Guidelines while giving
due consideration to the intent of this Agreement.
(f) The Shareholder Directors (but not the Shareholder), will each be
invited to serve on at least one committee of the Board while serving as
Directors, in accordance with and subject to their respective qualifications.
The parties hereto acknowledge and agree that so long as each applicable
Shareholder Director (i) submits to the proper approval process with the
Nominating & Governance Committee, consistent with Buyer's Corporate Governance
Guidelines and (ii) has the requisite qualifications as determined in good faith
by the Nominating & Governance Committee, one of the Shareholder Directors will
be invited to serve on the Audit Committee of the Board while serving as a
Director and one of the Shareholder Directors will be invited to serve on the
Compensation Committee of the Board while serving as a Director.
(g) Subject to Sections 2(d), 2(h), 3, and 5, in the event any
Shareholder Director dies, becomes disabled or resigns, retires or is removed
from the Board, Shareholder shall have the right to designate a replacement
director to fill such vacancy to serve for a term of office continuing only
until the next election of the class of Directors in which the vacancy occurs
and such replacement director shall be considered a "Shareholder Director" for
purposes of this Agreement.
(h) (i) The rights of Shareholder to designate any Shareholder
Director, the right of any Shareholder Director to sit on the Board, and the
obligations of the Board and Buyer pursuant to this Section 2 with respect to
the Shareholder Directors shall terminate in the event that Shareholder both (A)
ceases to Own 9% of the outstanding shares of Buyer common stock and (B) ceases
to Own 9,000,000 shares of Buyer common stock.
(ii) All rights of Shareholder, including without limitation, the
right of Shareholder to sit on the Board, and the obligations of the Board and
Buyer pursuant to this Section 2, shall terminate in the event Shareholder
ceases to Own 5,000,000 shares of Buyer common stock.
2. Effect of Amendments. Except to the extent expressly amended hereby, the
Nominating Agreement shall remain in full force and effect in all respects.
3. Applicable Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the state of New York, without giving
effect to any choice of law or conflict of laws, rules or provisions (whether of
the state of New York or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the state of New York;
provided, however, that any matter involving the internal corporate affairs of
Buyer shall be governed by the provisions of the jurisdiction of its
incorporation.
4. Counterparts. This Amendment may be executed in one or more counterparts
(including counterparts executed and delivered by facsimile, which shall be as
counterparts executed and delivered manually), all of which shall be considered
one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party, it being understood that all parties need not sign the same counterpart.
IN WITNESS WHEREOF, this Amendment has been duly executed by the parties
hereto as of the day and year first written above.
XXXXXXX COMPANY
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chairman, President & CEO
XXXXX XXXXX
By: /s/ Xxxxx Xxxxx
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