EXHIBIT 2
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (the "Agreement") dated as of August 30, 2006
(the "Effective Date") by and among Xxxxxxxx Corporation, a Missouri corporation
(the "Company"), Xxxxxx Xxxxxxx LLC, a Delaware limited liability company
("Xxxxxx Xxxxxxx"), Xxxxx Xxxxx Fund LP, a Delaware limited partnership ("Xxxxx
Xxxxx"), Xxxxx Xxxxx Offshore Fund LTD, a British Virgin Islands international
business company ("Xxxxx Xxxxx Offshore" and, together with Xxxxxx Xxxxxxx and
Xxxxx Xxxxx, "Pirate").
W I T N E S S E T H:
A. The Company has outstanding approximately 9,431,341 shares of Common
Stock (as defined below).
B. On February 6, 2006, Steel Partners II, L.P. ("Steel") filed a twelfth
amendment to Schedule 13D previously filed by Steel with respect to the Company
indicating that it planned to (i) seek representation on the Company's Board of
Directors (the "Board of Directors") by nominating a slate of two candidates,
specifically Xxxxx Xxxxxxxxx and Xxxx Xxxxxx, for election as directors at the
2006 annual meeting of the Company's shareholders (the "2006 Annual Meeting")
and (ii) seek certain amendments to the Company's Articles (as defined below).
C. On April 4, 2006, Pirate filed a fifth amendment to Schedule 13D
previously filed by Pirate with respect to the Company recommending that the
Company adopt Steel's corporate governance proposals.
D. The Company and Pirate (each a "Party") desire to enter into this
Agreement, which provides for certain limitations on Pirate and its Affiliates
and Associates.
NOW, THEREFORE, in consideration of the premises, covenants and agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each Party, intending to be
legally bound, hereby agrees as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.1 Certain Definitions. As used in this Agreement, the following
terms will have the meanings specified below:
"Affiliate" has the meaning set forth in Rule 12b-2 of the General Rules
and Regulations under the Exchange Act.
"Applicable Law" means all applicable provisions of all (a) constitutions,
treaties, statutes, laws (including common law), rules, regulations, ordinances
or codes of any Governmental Authority, and (b) orders, decisions, injunctions,
judgments, awards and decrees of any Governmental Authority.
"Articles" means the Articles of Incorporation of the Company, as amended,
restated or supplemented from time to time.
"Associate" has the meaning ascribed to such term in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.
"Beneficial Owner" A Person will be deemed the "Beneficial Owner" of, and
will be deemed to "Beneficially Own," any securities:
(a) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly (as determined pursuant to
Rule 13d-3 and Rule 13d-5(b) of the General Rules and Regulations of the
Exchange Act as in effect on the date hereof);
(b) which such Person or any of such Person's Affiliates or
Associates has (i) the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion rights, exchange
rights, rights (other than Rights issued pursuant to the Rights Plan), warrants
or options, or otherwise, provided, however, that a Person will not be deemed
the "Beneficial Owner" of securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for payment or exchange;
or (ii) the right to vote pursuant to any agreement, arrangement or
understanding, provided, however, that a Person will not be deemed the
"Beneficial Owner" of any security under this clause (ii) if the agreement,
arrangement or understanding to vote such securities (A) arises solely from a
revocable proxy or consent given in response to a proxy or consent solicitation
made pursuant to, and in accordance with, the applicable rules and regulations
of the Exchange Act and (B) is not also then reportable by such Person on
Schedule 13D under the Exchange Act (or any comparable or successor report); or
(c) which are beneficially owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with respect
to a bona fide public offering of securities) for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy or consent as described in
clause (ii) of subparagraph (b) above) or disposing of any securities of the
Company.
"Business Day" means a day other than a Saturday, a Sunday, a day on which
banking institutions in the States of New York or Missouri are authorized or
obligated by law or required by executive order to be closed, or a day on which
the New York Stock Exchange is closed.
"Class I Director" means a member of the class of the Board of Directors,
the term of which expires at the 2006 Annual Meeting. For avoidance of doubt,
the term for each Class I Director elected at the 2006 Annual Meeting will be
three years.
"Class II Director" means a member of the class of the Board of Directors,
the term of which expires at the 2007 annual meeting of the Company's
shareholders.
"Class III Director" means a member of the class of the Board of
Directors, the term of which expires at the 2008 annual meeting of the Company's
shareholders.
"Common Stock" means the common stock of the Company.
"Disinterested Directors" means those members of the Board of Directors
that (a) are Incumbent Directors and (b) are not "interested directors" within
the meaning of Applicable Law.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder.
"Governmental Authority" means any federal, state, local or political
subdivision, governmental or administrative body, instrumentality, department or
agency or any court, administrative hearing body, arbitration tribunal,
commission or other similar dispute resolution panel or body, and any other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of a government.
"Group" means any group within the meaning of Section 13(d)(3) of the
Exchange Act, and Rule 13d-5(b) thereunder, in each case as in effect on the
date hereof.
"Incumbent Directors" means those individuals who, as of the date hereof,
constitute the Board of Directors; provided, however, that any individual who
becomes a director subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a vote of at least a
majority of the Incumbent Directors then serving on the Board of Directors will
be considered as though such individual were an Incumbent Director, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board of Directors. For avoidance of doubt, the
representatives of Steel will not be Incumbent Directors.
"Person" means an individual, a partnership, an association, a joint
venture, a corporation, a limited liability company, a business, a trust, any
entity organized under Applicable Law, an unincorporated organization or any
Governmental Authority.
"SEC" means the Securities and Exchange Commission.
"Vote" means, as to any entity, the ability to cast a vote at a
shareholders' or comparable meeting of such entity with respect to the election
of directors or other members of such entity's governing body.
"Voting Power" means the aggregate number of Votes of the Company
outstanding as at such date.
"Voting Securities" means the Common Stock and any other securities of the
Company having the right to Vote.
Section 1.2 Interpretation and Construction of this Agreement. The
definitions in Section 1.1 will apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require, any pronoun will
include the corresponding masculine, feminine and neuter forms. The words
"include," "includes" and "including" will be deemed to be followed by the
phrase "without limitation." All references herein to Articles, Sections and
Schedules will be deemed to be references to Articles and Sections of, and
Schedules to, this Agreement unless the context will otherwise require. The
headings of the Articles and Sections are inserted for convenience of reference
only and are not intended to be a part of or to affect the meaning or
interpretation of this Agreement. Unless the context will otherwise require or
provide, any reference to any agreement or other instrument or statute or
regulation is to such agreement, instrument, statute or regulation as amended
and supplemented from time to time (and, in the case of a statute or regulation,
to any successor provision).
ARTICLE II
REPRESENTATION AND WARRANTIES
Section 2.1 Representations and Warranties by Pirate. Xxxxxx Xxxxxxx,
Xxxxx Xxxxx and Xxxxx Xxxxx Offshore hereby represent and warrant to the Company
as follows:
(a) Each of them has all requisite power and authority to execute, deliver
and perform their respective obligations under this Agreement. The execution,
delivery and performance of this Agreement by each of them and the consummation
of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of each of them.
(b) This Agreement has been duly executed and delivered by each of them
and constitutes a legal, valid and binding obligation of each of them,
enforceable against each of them in accordance with its terms, except to the
extent that enforceability may be limited by bankruptcy, insolvency or other
similar laws affecting creditors rights generally or by general principles of
equity.
(c) No governmental consent, approval, authorization, license or
clearance, or filing or registration with any governmental or regulatory
authority, is required in order to permit any of them to perform its respective
obligations under this Agreement, except for such as have been obtained.
(d) The shares of Common Stock set forth on Schedule 2.1(d) attached
hereto represent all of the shares of Voting Securities of the Company, if any,
which are Beneficially Owned by any or all of them on the date hereof. Such
shares are owned free and clear of any charge, claim, equitable interest, lien,
option, pledge, security interest, right of first refusal, encumbrance or
similar restriction. None of them has the right to vote shares of Voting
Securities of the Company other than those set forth on Schedule 2.1(d), and
none of them has granted any other Person the right to vote such shares, except
that Xxxxx Xxxxx and Xxxxx Xxxxx Offshore have granted Xxxxxx Xxxxxxx the right
to vote their shares of Common Stock.
Section 2.2 Representations and Warranties by the Company. The Company
represents and warrants to Pirate as follows:
(a) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement by the Company and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite corporate action on the part of the Company.
(b) This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting creditors rights generally or by general principles of equity.
(c) No governmental consent, approval, authorization, license or
clearance, or filing or registration with any governmental or regulatory
authority, is required in order to permit the Company to perform its obligations
under this Agreement, except for such as have been obtained.
ARTICLE III
COVENANTS AND OTHER LIMITATIONS
Section 3.1 Covenants. Pirate will not submit any proposals or Board of
Director nominations for consideration at the 2006 Annual Meeting. Within two
(2) Business Days of the date of this Agreement, Pirate will file, or cause to
be filed on its behalf, with the SEC an amendment to its Schedule 13D with
respect to the Company disclosing the material contents of this Agreement.
In addition to the foregoing, Pirate agrees that it will not, and it will
cause each of its Affiliates and Associates not to, directly or indirectly,
alone or in concert with others, take any of the actions set forth below:
(a) effect, seek, offer, propose (whether publicly or otherwise) or cause
or participate in, or assist, encourage or seek to persuade, any other Person to
effect, seek, offer or propose (whether publicly or otherwise) or participate
in:
(i) any tender offer or exchange offer; provided, however, that this
clause (i) will be inoperative to the extent a third party which is
not an Affiliate or Associate of Pirate commences a hostile tender
offer or exchange offer with respect to the Company's securities;
(ii) any merger, consolidation, share exchange, business combination,
sale of assets, recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with or involving the
Company or any material portion of its business or substantial part
of the assets of the Company; provided, however, that if the Company
conducts a sale process, Pirate will have the opportunity to
participate in such process under the same procedures and guidelines
established for the other participants in the process; or
(iii) any "solicitation" of "proxies" (as such terms are used in the proxy
rules of the SEC) with respect to the Company or any action
resulting in such Person becoming a "participant" in any "election
contest" (as such terms are used in the proxy rules of the SEC) with
respect to the Company, except that Pirate may make recommendations
to shareholders relating to and/or solicit revocable proxies or
written consents for the approval of any proposal (other than
election of directors) submitted by any other shareholder of the
Company which is not an Affiliate or Associate of Pirate or a member
of any Group of which either Pirate or its Affiliates or Associates
is a member;
(b) propose any matter for submission to a vote of shareholders of the
Company;
(c) form, join or participate with any Person in a Group with respect to
any Voting Securities;
(d) grant any proxy with respect to any Voting Securities to any Person
not designated by the Company;
(e) deposit any Voting Securities in a voting trust or subject any Voting
Securities to any arrangement, agreement or understanding with respect to the
Voting of such Voting Securities or other agreement having similar effect;
(f) execute any written shareholder consent with respect to the Company,
except as specifically contemplated in Section 3.1(a)(iii);
(g) take any other action to seek to affect the control of the management
or Board of Directors of the Company; or
(h) call or seek to have called any meeting of the shareholders of the
Company;
(i) unless such amendment, waiver or termination is approved by a majority
of the Disinterested Directors, request the Company or the Board of Directors,
directly or indirectly, to amend, waive or terminate any provision of this
Agreement; provided, however, that a request for a waiver or amendment is
permitted to be made by Pirate on a confidential basis to the Board of Directors
and no disclosure regarding such request or the subject matter thereof will be
made by Pirate or any of its Affiliates or Associates to any third party; or
(j) enter into any discussions, negotiations, arrangements or
understandings with any Person other than the Company with respect to any of the
foregoing, or advise, assist, encourage or seek to persuade others to take any
action with respect to any of the foregoing.
Section 3.2 Voting of the Company's Voting Securities. Pirate and its
Affiliates and Associates will vote their shares of Common Stock for the
election of Xxxxxxx X. X'Xxxx and Xxxxxx X. Xxxxxxxxxx as Class I Directors at
the 2006 Annual Meeting.
Section 3.3 Declassification and Reorganization of the Board of Directors.
The Company has shifted two of the members of the Classes of the Board of
Directors in connection with this Agreement such that the members of the Classes
of the Board of Directors immediately following the execution of this Agreement
will be as follows:
Class I Directors: Xxxxxxx X. X'Xxxx
Xxxxxx X. Xxxxxxxxxx
Class II Directors: Xxxx Xxxxxx
Xxxxxx X. Xxxxx
Xxx X. Xxxxxx
Class III Directors: Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxx
The Company hereby represents that the members of the Board of Directors
who are switching classes have consented to such switch and the Board of
Directors has approved such switch.
Section 3.4 Covenant Not to Xxx. The Company will not initiate litigation
against Pirate or its Affiliates or Associates for any events or activities
based on conduct occurring prior to the Effective Date. If the Company initiates
litigation against Pirate or its Affiliates or Associates for any activities or
events occurring after the Effective Date, the Company will not utilize any
events or activities occurring prior to the Effective Date as evidence in
support of its claim. Pirate will not initiate litigation against the Company or
its directors, officers, employees or agents with respect to any events or
activities occurring prior to the Effective Date. If Pirate initiates litigation
against the Company or its directors, officers, employees or agents for any
activities or events occurring after the Effective Date, Pirate will not utilize
any events or activities occurring before the Effective Date as evidence in
support of its claim. This Section 3.4 will survive indefinitely the termination
of this Agreement.
Section 3.5 Press Releases, Etc.
(a) Each Party (including, for purposes of this Section 3.5, Pirate's
Affiliates and Associates) may issue press releases and make other public
filings and communications to the financial community and to its investors in
the ordinary course relating to the matters covered by this Agreement; provided,
however, that prior to making any such press release or public filings or
communications, each Party will provide the other Party a reasonable opportunity
to review and comment on any such press release or public filings or
communications.
(b) Neither the Company, Pirate or Pirate's Affiliates or Associates, nor
any of their respective partners, members, directors, officers, employees or
agents, will publicly disparage any other Party to this Agreement nor any of
their respective partners, members, directors, officers, employees or agents.
Section 3.6 No Public Information. In connection with discussions between
Pirate and their representatives and the Company and its representatives, the
Company or its representatives may disclose to Pirate or its representatives
information which is confidential to the Company. To protect the confidentiality
of such information, and as a condition to the furnishing of such information,
Pirate agrees, as set forth below, to treat confidentially all such information
furnished to or otherwise received by Pirate or its representatives from the
Company or on its behalf (herein collectively referred to as the "Confidential
Information"). For purposes of this Agreement, the phrase "Confidential
Information" will not include information which (a) becomes lawfully available
to the public other than as a result of a disclosure by Pirate or its
representatives, (b) was lawfully available to Pirate on a nonconfidential basis
prior to its disclosure to the Company or its representatives by the Company or
on its behalf or (c) lawfully becomes available to Pirate on a nonconfidential
basis from a source other than the Company or the Company's representatives or
agents, provided that such source is not bound by a confidentiality agreement
with the Company of which Pirate has been made aware. The Company has no
obligation to furnish Confidential Information to Pirate or its representatives
by virtue of this Agreement. The Confidential Information will not be disclosed
by Pirate or its representatives except to the extent the Company has given its
prior written consent. This Section 3.6 will survive the termination of this
Agreement for two (2) years.
Section 3.7 Quorum. Pirate will use reasonable efforts to ensure that it
will be present, and will use reasonable efforts to cause its Affiliates and
Associates owning Voting Securities to be present, in each case, in person or by
proxy, at all meetings of shareholders of the Company so that all Voting
Securities Beneficially Owned by Pirate and its Affiliates and Associates will
be counted for purposes of determining the presence of a quorum at such meeting.
ARTICLE IV
TERM AND TERMINATION
Section 4.1 Termination. Except with respect to Sections 3.4 and 3.6, the
provisions of this Agreement will terminate at the conclusion of the 2006 Annual
Meeting. The provisions of this Agreement may also be terminated by the
non-breaching Party in the event of a material breach by any Party of any of the
terms of this Agreement. Furthermore, the provisions of this Agreement will
terminate in the event the settlement agreement with Steel, of even date
herewith, is terminated or amended. Any termination of this Agreement as
provided herein will be without prejudice to the rights of any Party arising out
of the breach by any other Party of any provision of this Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 Notices. All notices, requests and other communications to any
Party hereunder will be in writing (including prepaid overnight courier,
facsimile transmission or similar writing) and will be given to such Party at
its address or facsimile number set forth in this Section 5.1 or at such other
address or facsimile number as such Party may hereafter specify in writing. Each
such notice, request or other communication will be effective (a) if given by
facsimile, when transmitted to the facsimile number specified in this Section
5.1 and confirmation of receipt is received by the sender, (b) if given by mail,
upon the earlier of actual receipt or three (3) Business Days after deposit in
the United States Mail, registered or certified mail, return receipt requested,
properly addressed and with proper postage prepaid, (c) one (1) Business Day
after deposit with an internationally reputable overnight courier properly
addressed and with all charges prepaid or (d) when received, if by any other
means.
The Company: Xxxxxxxx Corporation
000 Xxxxx Xxxxx Xxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxxx Xxxxxxxx Xxxxxx, LLP
0000 Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Telecopy No.: (000) 000-0000
Pirate: Xxxxxx Xxxxxxx LLC
000 Xxxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attn: Xx. Xxxxxx X. Xxxxxx, Xx.
Telecopy No.: (000) 000-0000
with a copy to: Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxxxxxx
The Parties will promptly notify each other in the manner provided in this
Section 5.1 of any change in their respective addresses. A notice of change of
address will not be deemed to have been given until received by the addressee.
Communications by telecopier also will be sent concurrently by mail, but will in
any event be effective as stated above.
Section 5.2 Expenses. Each Party will pay its own expenses, including the
expenses of its own counsel and other advisors, in connection with the
negotiation and preparation of this Agreement.
Section 5.3 Assignment. No Party will assign this Agreement or any rights,
interests or obligations hereunder, or delegate performance of any of its
obligations hereunder, without the prior written consent of each of the other
Parties.
Section 5.4 Entire Agreement. This Agreement, including the Schedule and
Exhibit attached hereto, embodies the entire agreement and understanding of the
Parties in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the Parties with
respect to such subject matter.
Section 5.5 Waiver, Amendment, etc. This Agreement may not be amended or
supplemented, and no waivers of or consents to departures from the provisions
hereof will be effective, unless set forth in a writing signed by, and delivered
to, all the Parties. No failure or delay of any Party in exercising any power or
right under this Agreement will operate as a waiver thereof, nor will any single
or partial exercise of any right or power, or any abandonment or discontinuance
of steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power.
Section 5.6 Binding Agreement; No Third Party Beneficiaries. This
Agreement will be binding upon and inure to the benefit of the Parties and their
successors and permitted assigns. Nothing expressed or implied herein is
intended or will be construed to confer upon or to give to any third party any
rights or remedies by virtue hereof.
Section 5.7 Governing Law; Exclusive Jurisdiction; Service of Process.
This Agreement will be governed by and construed in accordance with the internal
laws of the state of Missouri, without regard to conflicts of laws principles.
Section 5.8 Severability. The invalidity or unenforceability of any
provision hereof in any jurisdiction will not affect the validity or
enforceability of the remainder hereof in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction. To the extent permitted by Applicable Law, each Party waives any
provision of Applicable Law that renders any provision hereof prohibited or
unenforceable in any respect. If any provision of this Agreement is held to be
unenforceable for any reason, it will be adjusted rather than voided, if
possible, in order to achieve the intent of the Parties to the extent possible.
Section 5.9 Counterparts. This Agreement may be executed in one or more
counterparts each of which when so executed and delivered will be deemed an
original but all of which will constitute one and the same Agreement.
Section 5.10 Remedies. Each of the Parties acknowledges and agrees that
each Party would suffer irreparable damage in the event that any of the
provisions of this Agreement was not performed in accordance with its specific
terms or was otherwise breached and that such damage may not be compensable in
money damages. It is accordingly agreed that, in the event of a breach,
violation or threatened breach or violation of the terms this Agreement by any
of the Parties, each of the other Parties will be entitled to specific
enforcement of, and injunctive relief to prevent any breach, violation or
further breach or violation of, the terms hereof, in addition to any other
remedy or relief available at law or in equity. In the event an action seeking
injunctive relief hereunder, no Party will be required to post bond.
[signature page follows]
IN WITNESS WHEREOF, the Company and Pirate have caused their respective
duly authorized officers to execute this Agreement as of the day and year first
above written.
XXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: Vice President and General Counsel
XXXXXX XXXXXXX LLC
By: /s/ Xxxxxx X. Xxxxxx Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Member
XXXXX XXXXX FUND L.P.
By: Xxxxxx Xxxxxxx LLC, its General Partner
By: /s/ Xxxxxx X. Xxxxxx Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Member
XXXXX XXXXX OFFSHORE FUND LTD.
By: Xxxxxx Xxxxxxx LLC, its Investment Manager
By: /s/ Xxxxxx X. Xxxxxx Xx.
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Member
SCHEDULE 2.1(D)
Xxxxx Xxxxx Fund LP 148,190 shares
Xxxxx Xxxxx Fund Offshore Fund Ltd. 1,061,057 shares
Total 1,209,247 shares*
* As the investment manager of Xxxxx Xxxxx Fund LP and Xxxxx Xxxxx Offshore Fund
Ltd., Xxxxxx Xxxxxxx LLC is deemed to be the Beneficial Owner of such 1,209,247
shares of Common Stock.
