AGREEMENT
Exhibit 10.23
AGREEMENT
This agreement (the “Agreement”) is made as of March 26, 2013 (the “Effective Date”), by and between H.D.D. LLC, a limited liability company organized and existing under the laws of California (“HDD”), Xxxxxx-Xxxxx, Inc., a Delaware corporation (“Xxxxxx”), and the Xxxxxxx-Xxxxxxxxx Revocable Family Trust (“Xxxxxxx”) (hereinafter referred to collectively as the “Parties”).
WHEREAS, HDD and Xxxxxxx entered into that certain letter agreement dated May 3, 2012 (the “Letter Agreement”) in connection with that certain Membership Interest Purchase Agreement dated May 3, 2012, pursuant to which Xxxxxxx was granted certain rights as an investor in HDD;
WHEREAS, Xxxxxx will acquire a controlling interest in HDD in connection with Xxxxxx’x public offering of common stock (the “IPO”); and
WHEREAS, immediately prior to the IPO, HDD will engage in a recapitalization transaction (the “Recapitalization”) whereby the various classes of membership interests currently held by HDD’s existing owners will be exchanged for a single class of LLC units in HDD (the “LLC Units”);
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged:
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1.
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Xxxxxxx hereby (i) waives any and all rights or benefits granted to Xxxxxxx under the Letter Agreement; and (ii) releases HDD from any and all obligations or liabilities created under the Letter Agreement.
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2.
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Xxxxxxx shall hereby be entitled to elect one (1) director to the board of directors of Xxxxxx (the “Election Right”), provided, however, that the Election Right, and any and all obligations or liabilities created thereunder, shall expire on the earlier of (i) the date on which Xxxxxx ceases to be a “controlled company” as defined by the corporate governance standards of the Nasdaq Capital Market, and (ii) the date on which Xxxxxxx ceases to own at least 50% of the LLC Units received by Xxxxxxx as a result of the Recapitalization.
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This Agreement shall be governed by the laws of the State of California without regard to the conflicts of laws provisions thereof. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall be one and the same document.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the Effective Date.
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H.D.D. LLC
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By:
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/s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: |
Chief Executive Officer and Managing
Member
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XXXXXX-XXXXX, INC.
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By:
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/s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: |
President and Chief Executive Officer
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THE XXXXXXX-XXXXXXXXX
REVOCABLE FAMILY TRUST
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By:
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/s/ Xxxxxx X. Xxxxxxx | |
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Xxxxxx X. Xxxxxxx, Trustee
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By:
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/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Trustee
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