Exhibit 99.03
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AGREEMENT
BY AND BETWEEN
XXXXXXX FAMILY INVESTORS, LLC,
FLEUR X. XXXXXXX,
XXXXXX X. XXXXXX AND XXXXX X. XXXXXX, JOINT TENANTS
AND
XXXXXX & XXXXX XXXXXX CHARITABLE REMAINDER UNITRUST
AGREEMENT
This AGREEMENT ("Agreement") made as of this 21st day of February, 2003
by and among Xxxxxxx Family Investors, LLC ("Xxxxxxx"), Fleur X. Xxxxxxx
("Fleur"), Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, husband and wife as joint
tenants ("Xxxxxx") and Xxxxxx & Xxxxx Xxxxxx Charitable Remainder Unitrust
("Unitrust") (Xxxxxxx, Fleur, Xxxxxx and Unitrust are hereinafter referred to
individually as "Shareholder" and jointly as "Shareholders").
WITNESSETH:
WHEREAS, Shareholders are the owners of the majority of the outstanding
stock of Xxxxxxx & Xxxxxx, Inc., a Delaware corporation (the "Corporation"); and
WHEREAS, Shareholders desire to promote their mutual interests and the
interests of the Corporation by imposing certain restrictions and obligations on
themselves and on any shares of stock of the Corporation now owned or hereafter
acquired by them.
NOW, THEREFORE, the parties intending to be legally bound, agree as
follows:
1. Definitions. The following terms as used in this Agreement shall be
deemed to have the following definitions:
"Act" shall mean The Securities Act of 1933.
"Affiliate" shall mean, with respect to any Person, (i) any Person
that directly or indirectly controls, is controlled by, or is under common
control with such Person; (ii) any Person that directly or indirectly controls
10% or more of the outstanding equity securities of such Person or of which such
Person is directly or indirectly owner of 10% or more of any class of equity
securities; (iii) any Person that is an officer of, director of, partner in, or
trustee of, or serves in a similar capacity with respect to, such Person or of
which such Person is an officer, director, partner or trustee, or with respect
to which such Person serves in a similar capacity; or (iv) any Person that is a
member of the immediate family of such Person ("immediate family" as used herein
shall mean spouse, mother, father, brother, sister or lineal descendant) or is
an entity controlled by a member of or members of such Person's immediate
family. For avoidance of doubt, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx shall be
considered affiliates of Xxxxxxx and Fleur.
"Board of Directors" shall mean the Board of Directors of the
Corporation.
"Xxxxxxx Group" shall mean Xxxxxxx and Fleur, and any of their
respective Permitted Transferees.
"Xxxx" shall mean Xxxxxx X. Xxxxxx.
"Bylaws" shall mean the Bylaws of the Corporation as amended on the
date hereof, in the form attached hereto as Exhibit A.
"Certificates" shall mean the stock certificates representing
Shares.
"Xxxxxxx" shall mean Xxxxxxx X. Xxxxxxx.
"Common Stock" shall mean the Common Stock, $0.01 par value, of the
Corporation.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Group" shall have the meaning comprehended by Section 13(d)(3) of
the Exchange Act as in effect on the date of this Agreement.
"Xxxxxx Agreement" shall mean the Agreement dated January 31, 2003
among Xxxxxxx, Fleur, I. Wistar Xxxxxx III and related entities, a copy of which
is attached hereto as Exhibit B.
"Person" shall have the meaning set forth in Section 3(a)(9) of the
Exchange Act as in effect on the date of this Agreement, and shall include,
without limitation, corporations, partnerships, limited liability companies and
trusts.
"Permitted Transferee" shall have the meaning set forth in the First
Amended and Restate Shareholders Agreement dated July 31, 2002, as amended
through the date hereof, among Bresler, Reiner, Unitrust and the Corporation
"Xxxxxx Group" shall mean Xxxxxx and Unitrust, and any of their
respective Permitted Transferees.
"Shares" shall mean outstanding shares of Common Stock.
2. Representations and Warranties. Each party to this Agreement makes
the following representations and warranties with respect to each such party and
with respect to his/her or its Shares only:
(a) Power, Authority; Valid Agreement. (i) Such party has all
requisite power and authority to execute, deliver and perform its obligations
under this Agreement and any other documents delivered in connection herewith;
(ii) such party's execution of this Agreement has been authorized by all
necessary corporate or other action on its behalf; and (iii) this Agreement is
valid, binding and enforceable against such party in accordance with its terms
(subject to applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally).
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(b) No Conflict; No Violation. The execution and delivery of this
Agreement by such party and the performance of such party's duties and
obligations hereunder (i) do not and will not conflict with, result in a breach
of the terms, conditions or provisions of, or constitute a default under (A) the
organizational documents or agreements or other governing instruments applicable
to such party, (B)(1) any indenture, mortgage, deed of trust, credit agreement,
note or other evidence of indebtedness, or any lease or other agreement or
understanding, or (2) any license, permit, franchise or certificate, to which
such party is a party or by which such party is bound or to which it or any of
such party's properties are subject; (ii) do not require any authorization or
approval under or pursuant to any of the foregoing matters set out in (B); (iii)
do not violate any order, judgment, decree, statute, law, rule or regulation to
which such party or any affiliate of such party is subject.
(c) No Default. Such party is not (i) in default (nor has any event
occurred which with notice, lapse of time, or both, would constitute a default)
in the performance of any obligation, agreement or condition contained in (A)
this Agreement, (B) the organizational documents or agreements or other
governing instruments applicable to such party, (C)(1) any indenture, mortgage,
deed of trust, credit agreement, note or other evidence of indebtedness or any
lease or other agreement or understanding, or (2) any license, permit, franchise
or certificate, in each case, to which such party or any affiliate of such party
is bound or to which such party or any of such party's properties are subject,
or (ii) in violation of any order, decree, statute, law, rule or regulation
applicable to such party which default, event or violation, in the case of
clauses (i)(C) or (ii), could reasonably be expected to have a materially
adverse effect on such party's ability to perform its obligations under this
Agreement.
(d) No Litigation. There is no litigation, investigation or other
proceeding pending or, to such Party's knowledge, threatened against such party
which if adversely determined, would materially adversely affect such party's
business or financial condition or such party's ability to perform its
obligations under this Agreement.
(e) Consents. No consent, approval or authorization of, or filing,
registration or qualification with, any court or governmental authority on its
part is required for the execution and delivery of this Agreement by such party
or the performance of its obligations and duties under this Agreement.
(f) Ownership. Each party owns and holds good and marketable title
to the Shares owned by each party free and clear of any and all liens,
encumbrances, charges, options, rights of first refusal, or other similar
matters of any kind whatsoever and the Shares are not subject to any
restrictions other than those specified in this Agreement or restrictions on
transfer that arise under securities laws.
3. Term. The term of this Agreement shall commence on the date hereof
and terminate at 11:59 p.m. on February 20, 2018.
4. Major Decisions.
(a) No Shareholder shall vote any Shares, and Xxxxxxx shall not give
any consent under the Xxxxxx Agreement, without the consent of both Xxxxxxx and
Xxxxxx, in favor of any of the following actions by the Corporation ("Major
Decisions"):
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(i) to merge with or into or consolidate with or enter into a
business combination, share exchange or similar transaction with any
other corporation or entity; to sell, lease or otherwise dispose of all
or substantially all of its properties or assets in a single or series
of related transactions (other than in connection with the formation of
a real estate investment trust of which the Corporation is the founder
or sponsor or similar transaction and in which the Corporation is the
general partner); to dispose of all or substantially all subsidiaries,
to acquire all or substantially all of the stock or properties and
assets of any other corporation in a transaction which involves an
investment of more than $10,000,000 (which amount shall increase
effective January 1 of each year to reflect any increase in the
Consumer Price Index -All Urban Consumers, All Items, U.S. City Average
("CPI") over the CPI for January, 2003); provided, however, that
consent of both the Xxxxxxx Group and Xxxxxx Group shall not be
required with respect to (x) any of the foregoing satisfying the
conditions set forth in the parenthetical to Section 5(a)(ii) below, or
(y) a merger of the Corporation with a publicly traded corporation
having a total market capitalization greater than $500 million for a
price greater than 125% of the average bid quote for the Common Stock
on the OTCBB (or any successor quotation service on which bid quotes
for the Common Stock are reported) for the 40 trading days prior to the
date on which a binding merger agreement is signed by the Corporation;
(ii) to dissolve the Corporation (within the meaning of the
Delaware Business Corporation Law);
(iii) to effect a reorganization, restructuring or
recapitalization other than one satisfying the conditions set forth in
the parenthetical to Section 5(a)(ii) below.
(iv) to engage in a tender offer for shares of the Corporation's
Common Stock (other than cash or cash equivalents)
(v) to permit any single or related series of investments by the
Corporation in an amount in excess of $10,000,000 (which amount shall
increase effective January 1 of each year to reflect any increase in
the CPI over the CPI for January, 2003; or
(vi) to amend the Certificate of Incorporation of the
Corporation.
(b) Xxxxxxx shall instruct Xxxxxxx and Xxxxxx Xxxxxxx to use their
respective best efforts to give Xxxx reasonable notice of all meeting with
parties not Affiliated with the Corporation related to the Waterfront complex at
which both Xxxxxxx and Xxxxxx Xxxxxxx are attending.
5. Standstill Restrictions.
(a) Prohibited Acts. During the term of this Agreement, each
Shareholder covenants and agrees that such Shareholder shall not, and shall not
permit any of its Affiliates to, either individually or as part of a Group,
directly or indirectly:
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(i) acquire (other than acquisitions resulting from corporate
action authorized by the Board of Directors with respect to any pro
rata distribution of shares of Common Stock in connection with any
stock split, stock dividend, recapitalization, reclassification or
similar transaction), solicit an offer to sell, propose to acquire (or
publicly announce or otherwise disclose an intention to propose to
acquire), offer to acquire, or agree to acquire any Common Stock (or
any options, warrants, rights or other securities exercisable for, or
convertible or exchangeable into, Common Stock); provided that this
Section 5(a)(i) shall not apply to (A) any acquisition of Common Stock
or of options, warrants, rights or other securities exercisable for, or
convertible or exchangeable into, Common Stock granted to any Person
pursuant to any benefit plan of the Corporation or any of its
Affiliates or (B) the exercise, conversion or exchange of any Common
Stock upon the exercise by a Shareholder of rights pursuant to any
Rights Agreement that may be adopted by the Corporation for the purpose
of deterring coercive takeover activities with respect to the
Corporation, provided that all of the shares of Common Stock so
acquired upon the exercise of the rights shall be subject to all of the
terms of this Agreement or (C) any acquisition of Common Stock made in
compliance with Section 7;
(ii) other than in the capacity as a director or officer of the
Corporation, propose (or publicly announce or otherwise disclose an
intention to propose), solicit, offer, seek or take any action to
effect, negotiate with or provide any non-public information relating
to the Corporation or its business to any Person with respect to, any
tender or exchange offer, merger, reorganization, sale of assets,
consolidation, liquidation, dissolution, share exchange, business
combination, restructuring, recapitalization or similar transaction
involving the Corporation (other than (x) any of the foregoing that has
been approved by the Board of Directors or (y) in connection with any
tender or exchange offer in which the Board of Directors has (A)
recommended that its shareholders accept such offer or (B) after ten
(10) business days (as defined in Rule 14d-1 under the Exchange Act as
in effect on the date of this Agreement) from the date of commencement
of such offer, expressed no opinion, remained neutral, was unable to
take apposition or otherwise did not oppose or recommend that its
shareholders reject such offer), provided, the parties hereto
acknowledge that any such action to effect any of the foregoing shall
require shareholder approval of the Corporation.
(iii) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are defined in Rule 14a-1 under the Exchange
Act), solicit any consent or communicate with or seek to advise,
influence or cooperate in any manner whatsoever any person or entity
with respect to the voting of any Common Stock or become a
"participant" (as such term is defined in Item 4 of Schedule 14A under
the Exchange Act) in any solicitation with respect to the Common Stock
or the Corporation; provided that nothing in this Section 5.1(a)(iii)
shall apply to any deemed solicitation of proxies that may result from
the position or status of a Shareholder or any of its Affiliates as a
director of the Corporation at the time of any general solicitation of
proxies by the management of the Corporation;
(iv) form, participate in or join any Persons or Group with
respect to the Common Stock or the Corporation or otherwise act in
concert with any Person for the purpose of (x) acquiring beneficial
ownership of any Common Stock or (y) holding or disposing of Common
Stock for any purpose prohibited by this Section 5(a); provided that
the foregoing shall not apply to Xxxxxxx with respect to the Xxxxxx
Agreement so long as Xxxxxxx takes no action under the Xxxxxx Agreement
that is inconsistent with this Agreement;
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(v) except as specifically provided in Section 6 below, deposit
any Common Stock into a voting trust or subject any Common Stock to any
arrangement or agreement with respect to the voting thereof; provided
that the foregoing shall not apply to Xxxxxxx with respect to the
Xxxxxx Agreement so long as Xxxxxxx takes no action under the Xxxxxx
Agreement that is inconsistent with this Agreement;
(vi) initiate, propose or otherwise solicit any holder of Common
Stock for the approval of any "shareholder proposal" (as such term is
used in Rule 14a-8 under the Exchange Act) with respect to the Common
Stock or the Corporation, or induce to attempt to induce any other
Person to initiate, propose or otherwise solicit any such shareholder
proposal;
(vii) except as specifically provided in Section 6 below, seek
election to or seek to place a representative on the Board of
Directors, or seek the removal of any member of the Board of Directors;
(viii) take any other action in the capacity of a shareholder of
the Corporation to seek to Control the management or policies of the
Corporation;
(ix) announce an intention to, or enter into any discussion,
negotiations, arrangements or understandings with any third party with
respect to, any of the foregoing;
(x) disclose any intention, plan or arrangement inconsistent
with the foregoing, except to the extent required by law;
(xi) advise, assist or encourage any other Person in connection
with any of the foregoing; or
(xii) enter into any agreement with respect to any of the
actions described in subsections (a)(i) through (a)(xi), inclusive,
above or ask for a waiver of any such provisions.
(b) Notice. Each Shareholder agrees that it will notify the
Corporation and each other Shareholder promptly if any inquiries or proposals
are received by, any information is exchanged with respect to, or any
negotiations or discussions are initiated or continued by or with, such
Shareholder or any of its Affiliates regarding any matter described in Section
5(a) above. the Corporation and each other Shareholder shall mutually agree upon
an appropriate response to be made to any such proposal.
(c) Exclusions. Nothing contained in this Section shall be deemed to
restrict the manner in which a Shareholder or any of its Affiliates which is a
member of the Board of Directors may participate in deliberations or discussions
of the Board of Directors or individual consultations with any member of the
Board of Directors.
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6. Voting Agreement.
(a) Election of Directors. In any and all elections of directors of
the Corporation (whether at a meeting or by written consent in lieu of a
meeting) each Shareholder shall vote or cause to be voted all Common Stock owned
by it now and hereafter acquired, or over which it has voting control, and
otherwise use its respective best efforts, so as to designate two directors
designated by Xxxxxxx, two directors designated by Xxxxxx and the remainder of
the directors (the "Outside Directors") as is are mutually acceptable to Xxxxxxx
and Xxxxxx. The parties hereby agree that Xxxxxx X. Xxxxxxx III, Xxxxx X.
Childs, Jr., Xxxxxxx X. Xxxxxxxxxx, Xxxxxxxx X. Xxxxx and Xxxx X. Xxxxxxx are
mutually acceptable to Xxxxxxx and Xxxxxx. In the event that Xxxxxxx and Xxxxxx
are unable, in their reasonable discretion, to agree on one or more Outside
Directors within thirty (30) days of the creation of a vacancy, then Xxxxxxx and
Xxxxxx shall, in their reasonable discretion, each appoint a representative
within ten (10) days, the representatives so appointed shall, in their
reasonable discretion, nominate candidates for such Outside Director positions,
and the Shareholders shall vote their Shares in favor of such nominees. Xxxxxxx,
in his reasonable discretion, shall have the right to appoint any person as a
representative other than Xxxxxxx. Xxxxxx shall have the right, in his
reasonable discretion, to appoint any person as a representative other than
Xxxx, Xxxxx Xxxxxx or their children. The parties acknowledge that federal
securities laws and the requirements of any exchange or listing authority may
establish criteria for outside directors of public companies and that the
parties, and any representatives appointed pursuant to this Subsection, shall
consider such requirements in making nominations of Outside Directors The
directors initially designated by Xxxxxxx are Xxxxxxx and Xxxxxx X. Xxxxxxx; the
directors initially designated by Xxxxxx are Xxxx and Xxxxxxx X. Xxxxxx and the
directors initially deemed mutually acceptable and designated by the
Shareholders are Xxxxxx X. Xxxxxxx III, Xxxxx X. Childs, Jr., Xxxxxxx X.
Xxxxxxxxxx, Xxxxxxxx X. Xxxxx and Xxxx X. Xxxxxxx. No Shareholder shall vote to
remove any Outside Director without the prior written consent of the other
Shareholders.
(b) Bylaws. Xxxxxxx and Xxxxxx each shall direct the directors
appointed by them to approve the Bylaws.
(c) No Voting Trust. This Agreement does not create or constitute,
and shall not be construed as creating or constituting, a voting trust agreement
under the Delaware General the Corporation Law or any other applicable
corporation law.
(d) Xxxxxxx shall not consent to any action by Xxxxxx under the
Xxxxxx Agreement which is inconsistent with the terms of this Agreement.
7. Acquisition of Shares.
(a) By Xxxxxxx Group. In the event that any Shareholder in the
Xxxxxxx Group purchases Shares from a Person other than another Shareholder,
such Shareholder shall promptly following such purchase notify the members of
the Xxxxxx Group of such purchase and offer to sell 50% of the Shares so
purchased to the Xxxxxx Group for the same price per share (including
commissions and other purchase costs) that such Shareholder paid. The members of
the Xxxxxx Group shall have ten (10) days from the receipt of such notice to
accept such offer by written acceptance to the offering Shareholder, accompanied
by payment of the purchase price. Upon receipt of the purchase price, the
offering Shareholder shall direct the Corporation's transfer agent to issue to
the members of the Xxxxxx Group who accepted the offer a certificate or
certificates representing the Shares purchased by the members of the Xxxxxx
Group.
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(b) By Xxxxxx Group. In the event that any Shareholder in the Xxxxxx
Group purchases Shares from a Person other than another Shareholder, such
Shareholder shall promptly following such purchase notify the members of the
Xxxxxxx Group of such purchase and offer to sell 50% of the Shares so purchased
to the Xxxxxxx Group for the same price per share (including commissions and
other purchase costs) that such Shareholder paid. The members of the Xxxxxxx
Group shall have ten (10) days from the receipt of such notice to accept such
offer by written acceptance to the offering Shareholder, accompanied by payment
of the purchase price. Upon receipt of the purchase price, the offering
Shareholder shall direct the Corporation's transfer agent to issue to the
members of the Xxxxxxx Group who accepted the offer a certificate or
certificates representing the Shares purchased by the members of the Xxxxxxx
Group.
(c) Acquired Shares Bound by Agreement. The Shareholders agree that
any Shares acquired by any Shareholder subsequent to the date hereof shall be
subject to the terms of this Agreement.
8. Termination of Rights and Obligations on Certain Events.
(a) Xxxxxxx Group Acts. In the event that any member of the Xxxxxxx
Group or any Bresler Director casts any vote, gives any consent or otherwise
takes any action (i) to remove Xxxx from office as President and Co-Chairman of
the Corporation (other than for Good and Sufficient Cause, as defined below),
(ii) to amend the Bylaws of the Corporation without the consent of Xxxxxx, or
(iii) to institute any proceeding, claim or action, at law or in equity, seeking
a ruling that this Agreement or any provision hereof is illegal, invalid or
unenforceable, then upon written notice from Xxxxxx and failure to reverse such
action within fifteen (15) days following receipt of such notice, all
restrictions on voting and other actions by the Xxxxxx Group under Sections 4
and 6 above shall immediately terminate.
(b) Xxxxxx Group Acts. In the event that any member of the Xxxxxx
Group or any Xxxxxx Director casts any vote, gives any consent or otherwise
takes any action (i) to remove Xxxxxx Xxxxxxx from office as Chief Executive
Officer of the Corporation (other than for Good and Sufficient Cause), (ii) to
amend the Bylaws of the Corporation without the consent of Xxxxxxx, or (iii) to
institute any proceeding, claim or action, at law or in equity, seeking a ruling
that this Agreement or any provision hereof is illegal, invalid or
unenforceable, then upon written notice from Xxxxxxx and failure to reverse such
action within fifteen (15) days following receipt of such notice, all
restriction on voting and other actions by the Xxxxxxx Group under Sections 4
and 6 above shall immediately terminate.
(c) Good and Sufficient Cause. "Good and Sufficient Cause" shall
mean (i) continued inattention to or neglect of the duties to be performed by
the individual, which inattention is not the result of illness or accident and
which inattention is not cured within thirty (30) days after notice from the
Corporation to the individual, or (ii) violation of the Corporation's Code of
Conduct, as the Code of Conduct may be modified from time to time at the sole
discretion of the Corporation, which violation is not cured thirty (30) days
after notice from the Corporation to the individual,
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9. Compensation. The Shareholders agree that, with the exception of
payment of dividends on Shares, Xxxxxxx and Xxxx shall receive equal aggregate
payments and benefits from the Corporation, whether characterized as
compensation or otherwise; provided that this Section 9 shall terminate upon the
death or disability of either Xxxxxxx or Xxxx.
10. Securities Law Compliance. The parties acknowledge that the
Corporation shall have no obligation to issue certificates in connection with
any transfer of Shares unless satisfied that there has been compliance with the
requirements of the Securities Act of 1933 and applicable state securities laws
and all rules and regulations promulgated under the Securities Act of 1933 and
such state securities laws. In connection with this Agreement, Xxxxxxx and
Xxxxxx each shall prepare and file amendments to Schedules 13D substantially in
the forms attached hereto as Exhibits B-1 and B-2.
11. Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that any part
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
12. Notices, Offers, Acceptances and Rejections.
(a) Notices, etc. Any notice required to be given, or offer,
acceptance or rejection made pursuant to the provisions of this Agreement shall
be given in writing (including telecopy or similar teletransmission), addressed
as follows:
If to the Xxxxxxx Group: c/x Xxxxxxx Family Investors, L.L.C.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxx 0000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxx X. Xxxxx
Xxxxx, Harrison, Harvey, Branzburg &
Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to the Xxxxxx Group: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx
Xxxx and Xxxx LLP
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: 000-000-0000
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Unless otherwise specified herein, such notices or other communication shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of receipt),
or (b) in the case of any notice or communication sent by mail, three (3)
business days after being sent, if sent by registered or certified mail, with
first-class postage prepaid. Each of the parties hereto shall be entitled to
specify a different address by giving notice as aforesaid to each of the other
parties hereto, which notice shall be effective upon receipt by the parties of
such notice.
(b) Time Periods. Whenever a period of time is to be computed from
the date of receipt of an item of certified mail, such period shall be computed
from the fifth (5th) day following the date of mailing if delivery of the
certified mail item is refused by the party to whom it was directed.
(c) Multiple Notices. Whenever a notice, Offer, acceptance or
rejection or a copy is required to be sent to more than one person, all such
communications should whenever reasonably possible, be mailed within a single
twenty-four (24) hour period.
13. Benefit. Except as herein otherwise provided, this Agreement shall
inure to the benefit of and shall be binding upon the parties hereto and their
personal representatives, heirs, successors and assigns; provided, that the
benefits of Sections 4 through 7 above shall not be assignable to any person
other than a Shareholder.
14. Entire Agreement; Amendment, Modification and Termination.
(a) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
performance and/or usage inconsistent with any of the terms hereof This
Agreement may be amended, modified or terminated at any time or times by the
agreement in writing of Xxxxxxx and Xxxxxx.
(b) Termination. This Agreement shall automatically be terminated
when either the Xxxxxxx Group or the Xxxxxx Group, in each case in the
aggregate, is the beneficial owner of less than 500,000 Shares.
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15. Governing Law. This Agreement shall be construed and enforced in
accordance with the law (but not the law of conflict of laws) of the State of
Delaware.
16. Miscellaneous
(a) Indulgences, Etc. Neither the failure nor any delay on the part
of any part to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege with respect to
any concurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence.
(b) Provisions Separable. If any provision or term of this
Agreement is held to be illegal, invalid or unenforceable, such provision or
term shall be fully severable; this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised part of
this Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of each such illegal, invalid or unenforceable provision or term there
shall be added automatically as part of this Agreement another provision or term
as similar to the illegal, invalid or unenforceable provision as may be possible
and that is legal, valid and enforceable.
(c) Section Headings. Any Section headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(d) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflect hereon as the signatories.
(f) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which Federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
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17. No Third Party Rights. Except as expressly provided in this
Agreement, this Agreement is intended solely for the benefit of the parties
hereto and is not intended to confer any benefits upon, or create any rights in
favor of, any Person other than the parties hereto.
18. Expenses. Each of the parties hereto shall bear their own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby, except that if any party hereto institutes any proceeding, claim or
action, at law or in equity, in connection with or arising out of the terms,
conditions, covenants and agreements contained in this Agreement, the
non-prevailing party in any such action, claim or proceeding shall reimburse the
prevailing party for reasonable attorneys' fees, costs and other expenses
incurred in connection with such proceeding or action.
19. Further Assurances. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be necessary or appropriate to effectuate, carry out and comply with all
of its respective obligations under this Agreement. Each Shareholder shall
deliver to the Corporation, concurrently with the filing thereof with the
Securities and Exchange Commission, copies of all Forms 3, 4 and 5, Forms 144
and Schedules 13D and 13G, and each amendment thereto, relating to the
Corporation and filed by such Shareholder or its Affiliates.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
XXXXXXX FAMILY INVESTORS, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx, Manager
/s/ Fleur X. Xxxxxxx
-------------------------------------
Fleur X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx, Joint Tenant
/s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, Joint Tenant
XXXXXX & XXXXX XXXXXX
CHARITABLE REMAINDER UNITRUST
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Trustee
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
The undersigned hereby join in this Agreement solely for the purpose of agreeing
to, and being bound by, Section 9 above.
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
EXHIBIT A
BY-LAWS
[See Exhibit 3.2 to Form 8-K filed by the Corporation on
February 26, 2003]
2
EXHIBIT B
XXXXXX AGREEMENT
[See Exhibit 99.1 to Schedule 13D filed by
Xxxxxxx Family Investors, L.L.C., et al., on
February 5, 2003].
EXHIBIT B-1
[TO BE ATTACHED]
EXHIBIT B-2
[TO BE ATTACHED]
4
