EXHIBIT 10.167
AGREEMENT
This AGREEMENT (this "Agreement") is entered into as of this 30th day
of April, 1999 by and among Catalina Lighting, Inc. (the "Company"), on the one
hand, and Xxxxx X. Xxxx ("Xxxx") and DMM Investments Ltd., a Florida limited
partnership ("DMM"), on the other hand.
WHEREAS, the Company has distributed definitive proxy materials (the
"Company Proxy Materials") in respect of its 1999 Annual Meeting of Stockholders
(the "Annual Meeting") currently scheduled to be held on May 10, 1999;
WHEREAS, DMM has filed preliminary proxy materials (the "Xxxx Proxy
Materials") with respect to his proposal to nominate two individuals to stand
for election at the Annual Meeting in opposition to the management slate; and
WHEREAS, the Company and Xxxx wish to enter into a settlement on the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Company and Xxxx agree as follows:
1. Before the opening of the stock markets on Monday, May 3, 1999, the
Company shall issue a press release in the form attached hereto as Exhibit A and
Xxxx shall issue a press release in the form attached hereto as Exhibit B.
2. Xxxx and DMM each agree that they (a) shall not, directly or
indirectly, and shall use their best efforts to cause each "participant" (as
such term is used in Rule 14a-11 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) not to, solicit any proxies or participate in any
"solicitation" of any "proxy" (as such terms are defined in Rule 14a-1 under the
Exchange Act, and including without limitation any revocations of proxies
granted to the Company) with respect to matters to be presented at the Annual
Meeting, and shall not become a "participant" in any election contest relating
to the Annual Meeting, (b) shall promptly terminate all agreements and
understandings relating to the solicitation by Xxxx and DMM described in the
Xxxx Proxy Statement, and (c) shall not take any other actions inconsistent with
the matters contemplated hereby. As soon as possible on Monday, May 3, 1999,
Xxxx will take such steps as are necessary and appropriate to withdraw the Xxxx
Proxy Materials.
3. Immediately following the Annual Meeting, the Company will expand
the size of its Board of Directors and cause Xxx X. Xxxxxxxxx to be named as a
director of the Company.
4. Within two (2) business days after the execution and delivery of
this Agreement, the Company shall wire transfer to an account designated by
Milbank, Tweed, Xxxxxx & XxXxxx LLP the amount of $100,000 in full reimbursement
of Xxxx' expenses incurred in connection with the preparation of the Xxxx Proxy
Materials and related matters.
5. DMM and Xxxx each hereby releases, discharges and acquits the
Company, and its officers, directors, agents, representatives and each
participant named in the Company Proxy Statement from any and all claims,
grievances, demands, charges, liabilities, obligations, actions, causes of
action, damages, costs, losses of services, expenses and compensation of any
nature whatsoever existing on the date hereof, whether based on tort, contract
or other theory of recovery, on account of or in any way growing out of or
related to the Annual Meeting or the Company Proxy Statement, provided that this
release shall not prevent Xxxx and/or DMM from challenging the use of the proxy
referenced in a letter dated April 29, 1999 from Xxxxxxxx Xxxxxxxx to Xxxxxx X.
Xxxxxxx, with respect to any meeting of stockholders occurring after the
Company's 1999 Annual Meeting.
6. The Company hereby releases, discharges and acquits Xxxx and DMM and
each participant named in the Xxxx Proxy Statement from any and all claims,
grievances, demands, charges, liabilities, obligations, actions, causes of
action, damages, costs, losses of services, expenses and compensation of any
nature whatsoever existing on the date hereof, whether based on tort, contract
or other theory of recovery, on account of or in any way growing out of or
related to the Annual Meeting or the Xxxx Proxy Statement.
7. During the period commencing on the date hereof and ending on
December 31, 1999 (the "Standstill Period"), DMM and Xxxx each:
A. shall cause all shares of capital stock of the Company which they
have the right to vote generally in the election of directors, including,
without limitation, shares of Common Stock (collectively, the "Voting
Stock"), that are beneficially owned (within the meaning of Regulation 13D
and Rules 13d-3 and 13d-5 under the Exchange Act) by such Party to be
present, in person or by proxy, at all meetings of the shareholders of the
Company so that all such shares may be counted for the purpose of
determining if a quorum is present at such meetings and (ii) to be voted in
favor of persons nominated and recommended by the Board of Directors of the
Company in the election of directors for the Annual Meeting;
B. shall not, directly or indirectly, solicit any proxies or consents
with respect to Voting Stock or in any way participate in any
"solicitation" of any "proxy" with respect to shares of Voting Stock (as
such terms are defined in Rule 14a-1 under the Exchange Act) or become a
"participant" in any election contest with respect to the Company (as such
term is used in Rule 14a-11 under the Exchange Act) or request or induce or
attempt to induce any other person to take any such actions or attempt to
advise, counsel or otherwise influence in any way any person with respect
to the voting of Voting Stock;
C. shall not make any proposal (including any proposal pursuant to Rule
14a-8 under the Exchange Act) or bring any business before any meeting of
the shareholders of the Company; and
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D. shall not (i) seek election to, nor seek to place a representative
on the Board of Directors of the Company, or (ii) seek the removal of any
member of the Board of Directors.
8. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, without giving effect to the principles of
conflict of laws thereof.
9. This Agreement may be executed in one or more counterparts by each
of the parties hereto (or by his or her attorney-in-fact), each of which shall
be deemed to be an original, but all of which shall be considered one and the
same instrument.
10. This Agreement may be amended, supplemented or modified only by a
written instrument duly executed by or on behalf of each party hereto.
11. This Agreement supersedes all prior discussions and agreements
between the parties with respect to the subject matter hereof and contains the
sole and entire agreement between the parties hereto with respect to the subject
matter hereof.
12. The terms and provisions of this Agreement are intended solely for
the benefit of each party hereto and their respective successors or assigns, and
it is not the intention of the parties to confer third party beneficiary rights
upon any other person.
13. Each of the parties hereto agrees that money damages would not be a
sufficient remedy for any breach of this Agreement by any party hereto and that
any party hereto shall be entitled to specific performance and injunctive or
other equitable relief as a remedy for any such breach.
CATALINA LIGHTING, INC. XXXXX X. XXXX
By: By:
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Name: Xxxxxx Xxxxx
Title: Chairman, Chief Executive Officer
and President
DMM INVESTMENTS LTD.
By DMM INVESTMENTS, INC.
Its General Partner
By:
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Name: Xxxxx X. Xxxx
Title: President
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