WAIVER AND AMENDMENT AGREEMENT
Exhibit
99.9
THIS WAIVER AND AMENDMENT AGREEMENT
(the “Agreement”) is entered into as of the 13th day of June, 2008, by
and between Xxxx Industries, Inc., a California corporation (“Bell California”),
and Xxxx Industries, Inc., a Minnesota Corporation (“Bell Minnesota, and
together with Bell California, the “Company”), on the one hand, and Newcastle
Partners, L.P., a Texas limited partnership (the “Noteholder”), on the other
hand.
WHEREAS, the Company issued to
Noteholder a $10,000,000 convertible promissory note on January 31, 2007, which
note was amended and restated on March 12, 2007 (the convertible promissory
note, as amended, the “Note”);
WHEREAS, the Company and
Noteholder entered into a Security Agreement dated March 12, 2007 (the “Security
Agreement”) and certain related agreements granting Noteholder a security
interest in the Collateral (as defined in the Security Agreement) to secure the
Company’s obligations under the Note;
WHEREAS, the Company has
previously entered into an Asset Purchase Agreement with Velocita Wireless LLC,
which agreement is set forth hereto as Exhibit A (the “Asset Purchase
Agreement”) to sell certain material assets of the Company, and the consummation
of the transactions contemplated thereby by the Company would constitute a
breach of, inter alia, Sections 10(c) and 11 of the Note and a breach
of the Security Agreement, respectively (collectively, the “Defaults”) but for
the execution of this Agreement;
WHEREAS, the Company is also
considering future transactions;
WHEREAS, the Company seeks a
forbearance and waiver from Noteholder under the Note and the Security Agreement
with respect to the transactions contemplated by the Asset Purchase Agreement
and for certain future transactions;
WHEREAS, the Company also
seeks an additional waiver under the Note that would permit the Company, for a
period of ninety (90) days following the date hereof, to prepay all outstanding
amounts owing under the Note without penalty or premium;
WHEREAS, in consideration of
the granting of the foregoing waiver, forbearance and limited prepayment right,
and for the other benefits the Company is receiving under this Agreement, the
Company proposes to enter into, upon the consummation of the transactions set
forth in the Asset Purchase Agreement a certain Amended Note (as hereinafter
defined, the form of which is set forth hereto as Exhibit B); and
WHEREAS, the Board of
Directors of the Company has formed a special committee consisting of directors
unaffiliated with Noteholder for the purpose of reviewing, negotiating and
approving the terms of this Agreement and the Amended Note on behalf of the
Company.
NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises hereinafter set
forth, the sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
SECTION
1. WAIVER AND FORBEARANCE
1.1 Subject
to the conditions set forth in Section 2.1, Noteholder hereby grants
the Company a waiver of the Defaults for the limited purpose of permitting the
Company to consummate all of the transactions under and contemplated by the
Asset Purchase Agreement (the “Transaction Waiver”). The Transaction
Waiver shall not be effective until each of the conditions in Section 2.1 hereof
have been fulfilled.
1.2 The
Company represents, warrants, acknowledges and agrees that the Transaction
Waiver shall be required in order for the Company to consummate the transactions
set forth in the Asset Purchase Agreement.
1.3 The
Transaction Waiver is not a continuing waiver of Sections 10(c) and 11 of the
Note (or the Amended Note) or any other provisions of the Note (or the Amended
Note), or any provisions of the Security Agreement, and shall apply solely in
respect of the transactions expressly set forth in the Asset Purchase
Agreement. For the avoidance of doubt, the Transaction Waiver shall
not apply to any amendment, modification or waiver of the Asset Purchase
Agreement or in respect of any transactions contemplated by any Asset Purchase
Agreement as amended, modified or waived.
1.4 The
Transaction Waiver shall be revoked in the event the Company breaches (or
determines to breach at or prior to the closing under the Asset Purchase
Agreement) any of its other obligations under this Agreement.
SECTION
2. AMENDMENT OF FOOTHILL FACILITY AND AMENDMENT OF NOTE
2.1 The
effectiveness of the Transaction Waiver described in Section 1 shall be subject
to the following conditions set forth in Sections 2.1(a), (b) and (c)
below:
|
|
(a)
|
The
Company shall have received consent from Xxxxx Fargo Foothill, Inc.
(including any successor or assignee, “Foothill”) under the Company’s
financing agreements with Foothill for the actions contemplated in this
Agreement, to the extent such consent is required
thereunder.
|
|
|
(b)
|
Noteholder
shall have entered into an amendment of the Intercreditor and
Subordination Agreement dated as of January 31, 2007 with Foothill, as
amended, restated, supplemented, or otherwise modified from time to time
(the “Intercreditor Agreement”), which amendment shall provide Noteholder
with the right to purchase Foothill’s entire interest in the Company’s
financing agreements with Foothill substantially upon the terms set forth
in the amendment to the Intercreditor Agreement attached
hereto.
|
|
|
(c)
|
Compliance
with the covenant set forth in Section 2.2
below.
|
2.2 Concurrently
with the consummation of the transactions under the Asset Purchase Agreement and
upon execution of this Agreement, the Company shall issue to Noteholder an
amended Note on substantially the terms set forth on Exhibit B hereto (the
“Amended Note”), which Amended Note, when executed, shall amend and supersede
the existing Note. Upon issuance of the Amended Note, the existing
Note shall be returned to the Company and shall be cancelled. The
Amended Note, upon issuance, shall be subject to the terms of Section 3
hereto. For the avoidance of doubt, the parties hereto agree that in
the event that the transactions contemplated by the Asset Purchase Agreement are
not consummated, then the Company shall have no obligation to issue the Amended
Note.
2.3 Upon
issuance of the Amended Note hereunder, the Company acknowledges and agrees that
(i) all references to the “Note” under the prior transaction and security
agreements (including the Security Agreement) (collectively, the “Security
Agreements”) executed by the Company and Noteholder shall be deemed to refer to
the Amended Note and (ii) all references to “Registrable Shares” under the
Registration Rights Agreement dated January 31, 2007 entered into by the Company
and Noteholder (and any other agreement or instrument executed in connection
therewith where such term applies) shall be deemed to include all shares
issuable under the Amended Note. The foregoing supersedes any
contrary or inconsistent provision in documents executed by the
parties.
SECTION
3. LIMITED PREPAYMENT RIGHT
3.1 Notwithstanding
anything to the contrary set forth herein or in the Amended Note, the Noteholder
hereby agrees that, for a period of ninety (90) days following the date hereof
(the “Prepayment Period”) (i) the Company shall have the right to prepay all
amounts outstanding under the Amended Note at 105% (the “Applicable Prepayment
Premium Rate”) of the aggregate outstanding principal under the Amended Note,
plus accrued but unpaid interest thereon and (ii) the Noteholder shall not have
the right to convert the Amended Note into the Company’s Common Stock pursuant
to the provisions therein. The foregoing shall operate as a limited
waiver of any contrary provisions set forth in the Amended Note. Upon
expiration of the Prepayment Period, the Company’s prepayment right as set forth
herein and this limited waiver of the prepayment restriction shall terminate,
and the Company’s rights with respect to prepayment shall be solely as set forth
in the Amended Note .
3.2 Noteholder
agrees that, during the Prepayment Period, Noteholder shall (i) if proceeds from
the issuance of securities are used to prepay Noteholder in full, waive any
pre-emptive right it has to acquire any of the Company’s securities triggered by
such issuance and (ii) cooperate with the Company in the Company’s efforts to
obtain permanent debt financing in replacement of the financing under the
Amended Note (the “Replacement Financing”). Noteholder and its
representatives shall use commercially reasonable efforts to facilitate the
closing of any such Replacement Financing during the Prepayment Period,
including execution of customary payoff letters and lien releases.
SECTION
4. ADDITIONAL WAIVER.
Subject
to the conditions set forth on Schedule A to this Agreement, Noteholder hereby
grants the Company a waiver of breaches under Sections 11(c) and 13 of the
Amended Note and breaches under the Security Agreement (the “Additional
Transaction Defaults”) for the limited purpose of permitting the Company to
consummate a potential sale of the assets set forth Schedule A (the “Additional
Transaction Waiver”). The Additional Transaction Waiver shall not be
effective unless and until each of the conditions on Schedule A have been
fulfilled. The Additional Transaction Waiver is not a continuing
waiver of Sections 11(c) and 13 of the Amended Note or any other provisions of
the Amended Note, or any provisions of the Security Agreement, and shall apply
solely in respect of a sale of the assets set forth on Schedule A which is
undertaken in manner consistent with the conditions set forth on Schedule
A. The Company represents, warrants, acknowledges and agrees that the
Additional Transaction Waiver shall be required in order for the Company to
consummate the disposal of the assets set forth on Schedule A.
SECTION
5. REPRESENTATIONS AND WARRANTIES.
The
Company makes the following representations and warranties to the Noteholder,
each of which Noteholder has relied upon in entering into this
Agreement:
5.1 Organization, Good Standing and
Qualification. Bell California and Xxxx Minnesota are
corporations duly organized, validly existing and in good standing under the
laws of the State of California and the State of Minnesota,
respectively. The Company has all requisite corporate power and
authority to own and operate its respective properties and assets and to carry
on its respective business as presently conducted and as presently proposed to
be conducted. The Company has all requisite corporate power and
authority to execute and deliver this Agreement and all other agreements or
instruments delivered or deliverable in connection herewith (collectively, the
“2008 Transaction Documents”) including but not limited to the Amended Note when
executed and to carry out the provisions of the 2008 Transaction
Documents. Each of the Company and their respective subsidiaries are
duly qualified and is authorized to do business and is in good standing in each
jurisdiction in which the nature of its respective activities and of its
respective properties (both owned and leased) makes such qualification
necessary, except for those jurisdictions in which failure to be so qualified
would not have a material adverse effect on the Company or its business, taken
as a whole.
5.2 Capitalization. Bell
California is authorized to issue 35,000,000 shares of Common Stock, of which
8,650,224 shares are issued and outstanding as of the date hereof, and 1,000,000
shares of preferred stock, of which no shares are issued and outstanding as of
the date hereof. Xxxx Minnesota is authorized to issue 5,000 shares
of Class A Common Stock and 2,500 shares of Class B Common Stock, $100.00 par
value per share, of which 3,000 shares of Class A Common Stock and
2,047 shares of Class B Common Stock are issued and outstanding, all of which
are owned by Bell California. Except as set forth in Bell
California’s current, quarterly, annual and other periodic filings, including
the exhibits thereto (the “SEC Reports”) with the U.S. Securities and Exchange
Commission (the “Commission”), there are no outstanding options, warrants or
other rights to acquire any of the Company’s capital stock, or securities
convertible, exercisable or exchangeable for the Company’s capital stock or for
securities themselves convertible, exercisable or exchangeable for the Company’s
capital stock (together, “Convertible Securities”). Except as set
forth in the SEC Reports, the Company has no agreement or commitment to sell or
issue any shares of capital stock or Convertible Securities. All
issued and outstanding shares of the Company’s capital stock (i) have been duly
authorized and validly issued, (ii) are fully paid and nonassessable, (iii)
subject to the rights of Noteholder, are free from any preemptive and cumulative
voting rights and (iv) were issued pursuant to an effective registration
statement filed with the Commission and applicable state securities authorities
or pursuant to valid exemptions under federal and state securities
laws. Except as set forth in the SEC Reports, there are no
outstanding rights of first refusal or proxy or shareholder agreements of any
kind relating to any of the Company’s securities to which the Company or any of
its executive officers and directors is a party or as to which the Company
otherwise has knowledge. When issued in compliance with the
provisions of the Amended Note, and subject to any required amendment to Bell
California’s Articles of Incorporation to increase the authorized shares thereto
in order to satisfy the conversion provisions of the Amended Note (the “Articles
Amendment”), as the case may be, the shares issuable thereunder will be validly
issued, fully paid and nonassessable, and will be free of any liens or
encumbrances; provided, however, that such shares may be subject to restrictions
on transfer under state and/or federal securities laws as set forth herein or as
otherwise required by such laws at the time a transfer is proposed.
5.3 Authorization; Binding
Obligations. All corporate action on the part of the Company,
its officers and directors (including a special committee of independent
directors) necessary for the authorization of the 2008 Transaction Documents and
the performance of all obligations of the Company hereunder and thereunder,
including the authorization, sale, issuance and delivery of shares of Common
Stock upon the conversion of the Amended Note, as the case maybe, has been
taken, and no further corporate action is required to be taken, subject to the
Articles Amendment. The 2008 Transaction Documents, when duly
executed and delivered by the Company, will be legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their terms. The issuance of shares of Common Stock upon conversion
of the Amended Note is not and will not be subject to any preemptive rights or
rights of first refusal. The Amended Note upon its execution and
issuance under Section 2.2 hereof (including Bell California’s obligation to
issue shares of Common Stock upon conversion of any or all principal amounts
thereunder), shall continue to be a valid and binding obligation of the Company,
enforceable against the Company in accordance with their terms. The
security interests granted by the Company to Noteholder pursuant to the Security
Agreements continue to be a valid and enforceable security interests in the
Collateral (as defined in the Security Agreement) in favor of Noteholder
securing all obligations of the Company under the Amended Note.
5.4 No Violation or
Conflicts. The execution and delivery of, and the performance
of and compliance with the transactions contemplated by, the 2008 Transaction
Documents, and the issuance of shares of common stock upon conversion of the
Amended Note, as the case may be, will not, with or without the passage of time
or giving of notice or both, result in any material violation of law or
agreement, or be in conflict with or constitute a default under any such
material term, or result in the creation of any material mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company or any
subsidiary or the suspension, revocation, impairment, forfeiture or nonrenewal
of any permit, license, authorization or approval applicable to the Company or
any subsidiary, the business or operations of the Company or any subsidiary or
any of the assets or properties of the Company or any subsidiary.
5.5 Governmental
Consents. No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body is
required for the due execution, delivery and performance by the Borrower of this
Agreement.
SECTION
6. GOVERNANCE
6.1 Following
issuance of the Amended Note, so long as either (a) at any time, Noteholder
beneficially owns greater than 50% (which shall be deemed to include, for the
avoidance of doubt, all shares of Common Stock issuable upon the conversion of
the Amended Note) of the shares of Common Stock outstanding or (b) greater than
50% of the initial principal amount of the Amended Note remains outstanding,
Bell California agrees to appoint to its Board of Directors at any time in
Noteholder’s discretion, and subject to the requirements of applicable federal
and California law (including but not limited to Rule 14f-1 promulgated pursuant
to the Securities Exchange Act of 1934, as amended), such number of director
designees of Noteholder (each, a Designee) such that Designees constitute 50% of
the then outstanding current members of Bell California’s Board of Directors
(or, if the number of members of the Board of Directors is an odd integer, such
number of Designees shall be the lowest integer that is greater than 50% of the
then outstanding members), and Noteholder shall have the right in its sole
discretion to designate to Xxxx any replacement for any Designee, including to
designate to Xxxx any director to fill any vacancy created by the removal,
death, retirement or disqualification (or other cause) of any
Designee. The parties hereto agree and acknowledge that Xxxxxxx
Xxxxxxx and Xxxx Xxxxxxx are Designees of Noteholder. Subject to the
provisions of Section 6.7(c) of the Note Purchase Agreement (as defined below),
Bell California agrees to take any and all action necessary to ensure that
promptly following any change in the size of Bell California’s Board of
Directors and/or the election or appointment of any additional members to Bell
California’s Board of Directors, Bell California is in compliance with the
foregoing sentence. For the avoidance of doubt, for purposes of the
provisions of this Section 6.1 only, during the Prepayment Period, Noteholder
shall not be deemed to beneficially own Common Stock issuable upon conversion of
the Amended Note, as the case may be.
6.2 The
rights set forth in Section 6.1 hereof shall be in addition to the rights set
forth in Section 6.7 of that certain Purchase Agreement dated January 31, 2007
between Bell California and Noteholder (the “Note Purchase Agreement”), all of
which rights remain in full force and effect. For the avoidance of
doubt, the parties hereto agree that in the event that the transactions
contemplated by the Asset Purchase Agreement are not consummated, the rights set
forth in Section 6.1 shall terminate.
SECTION
7. MISCELLANEOUS
7.1 Governing Law. This
Agreement shall be governed by the laws of the State of Texas, without regard to
conflicts of law principles. EACH OF THE PARTIES TO THIS AGREEMENT
CONSENTS TO SUBMIT TO THE PERSONAL JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN THE STATE OF TEXAS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT, AND AGREES NOT TO
BRING ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT IN
ANY OTHER COURT. EACH OF THE PARTIES TO THIS AGREEMENT AGREES NOT TO
ASSERT IN ANY ACTION OR PROCEEDING ARISING OUT OF RELATING TO THIS AGREEMENT
THAT THE VENUE IS IMPROPER, AND WAIVES ANY DEFENSE OF INCONVENIENT FORUM TO THE
MAINTENANCE OF ANY ACTION OR PROCEEDING SO BROUGHT AND WAIVES ANY BOND, SURETY
OR OTHER SECURITY THAT MIGHT BE REQUIRED OF ANY OTHER PARTY WITH RESPECT
THERETO.
7.2 Successors and
Assigns. Except as otherwise expressly provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto
and shall inure to the benefit of, and be binding upon, and be enforceable by
each person who shall be a holder of the Note (or the Amended Note, as
applicable). The Company shall not assign this Agreement or any
rights or obligations hereunder without the prior written consent of the
Noteholder. The Noteholder may assign some or all of its rights
hereunder without the consent of the Company in connection with a transfer by
the Noteholder of the Note (or Amended Note, as applicable); provided that any
such assignee or transferee shall be subject to the provisions herein as a
Noteholder.
7.3 Entire
Agreement. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof and no party
shall be liable or bound to the other in any manner by any representations,
warranties, covenants and agreements, except as specifically set forth herein
and therein. Notwithstanding the foregoing, the parties understand
and agree that, other than with respect to the Note (which shall be superseded
by the Amended Note), the agreements executed by the parties in connection with
the Note Purchase Agreement (including but not limited to the Note Purchase
Agreement and the Registration Rights Agreement), and all rights thereunder,
shall remain effective.
7.4 Severability. The
invalidity, illegality or unenforceability of one or more of the provisions of
this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of the remainder of this Agreement in such jurisdiction or the
validity, legality or enforceability of this Agreement, including any such
provision, in any other jurisdiction, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
7.5 Amendment and
Waiver. This Agreement may be amended or modified, and any
provision hereunder may be waived, only upon the written consent of the Company
and the Noteholder.
7.6 Notices. All
notices, requests, consents and other communications hereunder shall be made in
writing and shall be deemed given (i) when made if made by hand delivery, (ii)
one business day after being deposited with an overnight courier if made by
courier guaranteeing overnight delivery, (iii) on the date indicated on the
notice of receipt if made by first-class mail, return receipt requested or (iv)
on the date of confirmation of receipt of transmission by facsimile, addressed
as follows:
(a) if
to the Company, at
Xxxx
Industries, Inc.
0000
Xxxxxxxx Xxxxxxxx
Xxxxx
0000
Xxxxxxxxxxxx,
Xxxxxxx 00000
Facsimile:
(000) 000-0000
Attention: Chief
Financial Officer
with a
copy to:
Manatt,
Xxxxxx & Xxxxxxxx, LLP
00000
Xxxx Xxxxxxx Xxxxxxxxx
Xxx
Xxxxxxx, XX 00000
Facsimile: (000)
000-0000
Attention: Xxxx
Xxxxxx, Esq.
(b) if
to the Noteholder, in care of:
Newcastle
Partners, L.P.
000
Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
Attention: Xxxx
X. Xxxxx, Esq.
with a
copy to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxx
Xxxxxxx, Esq.
7.7 Indemnification by the
Company. The Company agrees to indemnify and hold the
Noteholder harmless against any loss, liability, damage or expense (including
reasonable legal fees and costs) that the Noteholder shall suffer, sustain or
become subject to as a result of or in connection with the breach by the Company
of any representation, warranty, covenant or agreement of the Company contained
in any of the 2008 Transaction Documents; provided, however, that no
indemnification shall be required hereunder for the gross negligence or willful
misconduct of the Noteholder or breach by the Noteholder of any of the
representations and warranties set forth in Section 6 hereof. In case
any such action is brought against the Noteholder, the Company will be entitled
to participate in and assume the defense thereof with counsel reasonably
satisfactory to the Noteholder, and after notice from the Company to the
Noteholder of its election to assume the defense thereof, the Company shall not
be responsible for any legal or other expenses subsequently incurred by the
Noteholder in connection with the defense thereof; provided, that if the
Noteholder shall have reasonably concluded that there may be one or more legal
defenses available to the Noteholder which conflict in any material respect with
those available to the Company, the Company shall not have the right to assume
the defense of such action on behalf of the Noteholder and the Company shall
reimburse the Noteholder for that portion of the fees and expenses of one
counsel retained by the Noteholder.
7.8 Release. In
consideration of the agreements of Noteholder contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Company, on behalf of itself and its successors, assigns, and
other legal representatives, hereby absolutely, unconditionally and irrevocably
releases, remises and forever discharges Noteholder and its successors and
assigns, predecessors, subsidiaries, partners (including limited partners),
directors, officers, attorneys, employees, agents and other representatives (all
such other Persons being hereinafter referred to collectively as the “Releasees”
and individually as a “Releasee”), of and from all claims, demands, actions,
causes of action, suits, and all other claims, counterclaims, defenses, rights
of set-off, demands and liabilities whatsoever (individually, a “Claim” and
collectively, “Claims”) of every name and nature, known or unknown, suspected or
unsuspected, both at law and in equity, which Company or any of its successors,
assigns, or other legal representatives may now or hereafter own, hold, have or
claim to have against the Releasees or any of them for, upon, or by reason of
any circumstance, action, cause or thing whatsoever which arises at any time on
or prior to the day and date of this Agreement and relating to (a) the
transactions contemplated by the Note or the Amended Note or actions taken by
Releasees in connection therewith (including but not limited to the negotiation
and execution of the Note or the Amended Note) or (b) Noteholder’s capacity as a
creditor or stockholder of the Company. The foregoing release shall
not apply with respect to violations or breaches of any state or federal
securities laws unrelated to the transactions contemplated by the Note or the
Amended Note (it being understood that the foregoing release shall not release
Releasees in respect of breaches of representations under the Note or the
Amended Note), or fraud or willful misconduct committed by any
Releasee.
7.9 Further
Assurances. Each party shall do and perform, or cause to be
done and performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and documents, as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby, including, without limitation, to enable the
full conversion of the Amended Note.
7.10 Expenses. The
Company agrees to pay or reimburse the Noteholder for its reasonable legal fees
and expenses incurred by Noteholder in connection with the negotiation and
execution of the 2008 Transaction Documents and any and all expenses that
Noteholder may incur after the date hereof in connection with the granting of
any waiver with respect to, the modification of any of the terms or provisions
of, or the enforcement of any of the 2008 Transaction Documents.
7.11 Titles and
Subtitles. The titles of the sections and subsections of the
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
7.12 Counterparts. This
Agreement may be delivered via facsimile or other means of electronic
communication, and may be executed in counterparts, each of which shall be an
original, but all of which together shall constitute one
instrument.
[Signature
Page Follows]
IN WITNESS WHEREOF, the
parties hereto have hereunto affixed their signatures.
|
Xxxx
Industries, Inc.,
|
Newcastle
Partners, L.P.
|
|||
|
a
California corporation
|
By:
Newcastle Capital Management, L.P.
its
General Partner
|
|||
|
By
|
/s/ Xxxxx Xxxxxxx |
By
|
/s/ Xxxx Xxxxx | |
|
Its
|
President & CFO |
Its
|
General Counsel | |
|
Xxxx
Industries, Inc.,
|
|
|
a
Minnesota corporation
|
|
|
By
|
/s/ Xxxxx Xxxxxxx |
|
Its
|
EVP & CFO |
