Exhibit 10 (xxxix)
AGREEMENT
AGREEMENT dated November 6, 1998 among XXXXX TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and each of the stockholders that have
executed this Agreement below (individually a "Stockholder," and collectively
the "Stockholders").
W I T N E S S E T H:
WHEREAS, as of September 23, 1998, the Stockholders were the beneficial
owners of shares of the Company's Class A Common Stock, par value $.10 per share
(the "Class A Common Stock"), and/or Class B Common Stock, par value $.10 per
share (the "Class B Common Stock" and together with the Class A Common Stock,
the "Old Common Stock"), as set forth on Exhibit A attached hereto; and
WHEREAS, the Board of Directors of the Company (the "Board") has approved,
subject to stockholder approval, an amendment to Article Fourth of the Company's
Amended and Restated Certificate of Incorporation (the "Charter") to eliminate
the dual class structure, and to provide instead for a single, new class of
common stock to be designated as "Common Stock," par value $.10 per share (the
"New Common Stock"); and
WHEREAS, the Board has approved, subject to stockholder approval, Charter
amendments to eliminate the dual class structure and revise Section (c) of
Article Sixth of the Charter to eliminate the "Substantial Stockholder
Provision," which imposes certain voting limitations upon any stockholder who
beneficially owns more than 20% of the outstanding voting shares of any class of
the Company's stock; and
WHEREAS, the Board has approved, subject to stockholder approval of the
Charter amendments mentioned above, the terms of a stockholder rights agreement
(the "Rights Agreement") which has the effect of excluding certain shares owned
by the Stockholders (the "Exclusion") on the condition that the Stockholders
enter into, and abide by the terms of, this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the Company and each of the Stockholders agree as follows:
1. DEFINITIONS. All terms used and not defined herein shall have the
definitions provided under the federal securities laws and the rules promulgated
thereunder.
2. COMPANY SECURITIES. Each of the Stockholders represents and agrees that
Exhibit A attached hereto accurately and completely sets forth as of September
23, 1998 the number of shares of Class A Common Stock and/or Class B Common
Stock owned
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beneficially by any such Stockholder. No Stockholder owns beneficially any
securities of the Company other than those set forth on Exhibit A for such
Stockholder.
3. RESTRICTIONS ON CERTAIN ACTIONS. None of the Stockholders, without the
prior written consent of the Board, shall:
(a) solicit or permit any person over whom or which such Stockholder
has control (a "Controlled Person") to solicit, or encourage or assist any
Associate, partner or Affiliate of such Stockholder to solicit, proxies with
respect to any shares of New Common Stock or other securities of the Company
entitled to vote generally for the election of directors or otherwise ("Voting
Securities") or become a "participant," or permit any Controlled Person, or
encourage or assist any Associate, partner or Affiliate of such Stockholder to
become a "participant," in any "election contest" (as such terms are used in
Rule 14a-11 of Regulation 14A under the Act) relating to the election or removal
of directors of the Company;
(b) deposit, or permit any Controlled Person or encourage or assist
any associate, partner or affiliate of such Stockholder to deposit, any Voting
Securities in a voting trust or similar arrangement, or subject, or permit any
Controlled Person or encourage or assist any associate, partner or affiliate of
such Stockholder to subject, any Voting Securities to a voting or similar
agreement;
(c) take any action alone or in concert with any other person to
acquire or affect the control of the Company or, directly or indirectly,
participate in, or encourage the formation of, any group seeking to obtain or
take control of the Company; and
(d) for so long as the Stockholder has a designee on the Board, sell
or purchase any securities of the Company without fully complying with the
Company's xxxxxxx xxxxxxx policies and procedures.
A Controlling Person, a Stockholder, and a Stockholder's designee on the
Board, shall not be precluded by this Section 3 from acting in such person's
capacity as a Board member.
4. COMPANY COVENANT. The Company covenants that, for so long as this
Agreement is in effect and the Stockholders abide by its terms, the Company will
not amend the Rights Agreement to alter or delete the Exclusion and will include
the Exclusion in each five-year renewal of the Rights Agreement, unless
otherwise approved by the Stockholders..
5. SPECIFIC ENFORCEMENT. Each of the Stockholders acknowledges and agrees
that the Company would be irreparably damaged in the event that any of the
provisions of this Agreement were not performed by any of the Stockholders in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Company shall be entitled to seek an injunction or
injunctions to prevent breaches of such provisions and to specifically enforce
such provisions in any action instituted in any court of the United States
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or any state thereof having subject matter jurisdiction, in addition to any
other remedy to which the Company may be entitled, at law or in equity. Each of
the Stockholders consents to personal jurisdiction in any such action brought
within the States of Ohio or Delaware in a United States District Court or in
any state court having subject matter jurisdiction, and to service of process
upon it in the manner set forth in paragraph 8(f) hereof.
6. AUTHORITY. Each party to this Agreement represents that (i) it has the
authority, and has taken all action necessary, to execute and deliver this
Agreement and carry out its obligations set forth herein, and (ii) this
Agreement has been duly executed and delivered by it, and assuming due
authorization, execution and delivery by the other parties, constitutes a valid
and binding obligation of such party.
7. EFFECTIVENESS. This Agreement shall become effective upon the Effective
Date (as defined in the Rights Agreement) of the Rights Agreement and shall
remain in effect for such time as the Stockholders own beneficially more than
five percent of the Company's Voting Securities.
8. MISCELLANEOUS.
(a) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable.
(b) EXPENSES. Each party hereto shall pay its own expenses incurred
in connection with this Agreement.
(c) SUCCESSORS AND ASSIGNS. No party shall assign his or its rights
hereunder, without the prior written consent of all parties hereto. This
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the successors and assigns of the parties hereto.
(d) SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND AGREEMENTS. All
representations, warranties, covenants and agreements made herein shall survive
the execution and delivery of this Agreement without limitation as to time.
(e) AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto.
(f) NOTICES. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if given) by delivery, by cable, facsimile
transmission, telegram or telex, or by mail (registered or certified mail,
postage prepaid, return receipt requested) to the respective parties at their
addresses set forth below on the signature pages hereof or to such other address
as any party may have furnished to the other parties in writing in accordance
herewith, except that notices of change of address shall only be effective upon
receipt.
(g) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the substantive law of the State of Delaware without giving
effect to the principles of conflict of laws thereof.
(h) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
Addresses: Parties:
---------- --------
Xxxxx Technologies, Inc. XXXXX TECHNOLOGIES, INC.
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
General Counsel and Secretary
Xxxxxxx X. Xxxx & Associates XXXXXXX X. XXXX & ASSOCIATES, L.P.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
XXXXXXX X. XXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President and Chairman
XXXXXXX X. XXXX
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title:
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EXHIBIT A
BENEFICIAL OWNERSHIP OF OLD COMMON STOCK AS OF SEPTEMBER 23, 1998
NAME
STOCK CLASS A COMMON STOCK CLASS B COMMON
----- -------------------- --------------
Xxxxxxx X. Bum 1,184,213 1,503,333
& Associates, L.P.
Xxxxxxx X. Xxxx 1,184,213 1,503,333
& Associates, Inc.
Xxxxxxx X. Xxxx 1,184,213 1,503,333
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