AGREEMENT
Exhibit 10.1
AGREEMENT
This Agreement, dated as of May 9, 2008 (the “Agreement”), is by and among Great Wolf
Resorts, Inc., a Delaware corporation (the “Company”), and the other parties signatory
hereto (collectively, the “Xxxxx Investors”).
WHEREAS, prior to the date hereof the Xxxxx Investors, together with certain related parties,
(i) delivered a letter (the “Nomination Letter”) to the Company, dated as of January 30,
2008, nominating (the “Xxxxx Nomination”) three individuals for election to the Board of
Directors of the Company (the “Board”) and (ii) filed a preliminary proxy statement on
Schedule 14A (the “Proxy Statement”) with the Securities and Exchange Commission (the
“SEC”) related to the matters set forth in the Nomination Letter;
WHEREAS, the Company and the Xxxxx Investors have agreed that it is in their mutual interests
to enter into this Agreement, which, among other things, terminates the pending proxy contest for
the election of directors at the 2008 Annual Meeting (as defined below);
WHEREAS, the Company has agreed, at the request of the Xxxxx Investors, to increase the size
of the Board from eight to nine members and to cause Xxxx X. Xxxxx and Xxxxxxx X. Xxxxxx III (each,
a “Xxxxx Investor Nominee”; together, and including any Replacement Xxxxx Nominee (as
defined below), the “Xxxxx Investor Nominees”) to be appointed and elected to fill the two
vacancies on the Board resulting from such increase;
WHEREAS, the Company has agreed, at the request of the Xxxxx Investors, in connection with the
Company’s 2008 Annual Meeting of Stockholders (including any adjournment or postponement thereof in
accordance with this Agreement, the “2008 Annual Meeting”), to nominate for election as a
member of the Board, and recommend that the stockholders vote to elect as a director of the
Company, each of the Xxxxx Investor Nominees; and
WHEREAS, the Board has agreed that, without further increasing the size of the Board, it will
take such action as may be necessary to ensure that Xxxx Xxx (Ms. May) or such other person
reasonably acceptable to the Xxxxx Investors (the “Third Nominee”) will also be nominated
for election at the 2008 Annual Meeting as a member of the Board whose term shall expire at the
Company’s 2009 Annual Meeting of Stockholders;
WHEREAS, provided the Company is not in breach of this Agreement, the Xxxxx Investors desire
to withdraw their Nomination Letter and to refrain from submitting any director nominations and to
vote for the election of the Company’s nominees for directors at the 2008 Annual Meeting.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and
for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 Defined Terms. For purposes of this Agreement:
| (a) | The term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
| (b) | The terms “beneficial owner” and “beneficially own” have the same meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act except that a person will also be deemed to beneficially own and to be the beneficial owner of all shares of capital stock of the Company which such person has the right to acquire pursuant to the exercise of any rights in connection with any securities or any agreement, regardless of when such rights may be exercised and whether they are conditional. | ||
| (c) | The term “Restricted Period” means the period from the date of this Agreement through the date that is 30 days prior to the first day of the notice period specified in the Company’s advance notice bylaw (Section 10 of Article 2 of the Company’s Bylaws) applicable to the Company’s 2009 Annual Meeting of Stockholders; provided, that the Xxxxx Investors may terminate the Restricted Period at any time by written notice to the Company if (i) the Company refuses to grant its consent to a Replacement Xxxxx Nominee as provided in clause (ii) to Section 2.1(c) within ten days following the request therefor, (ii) the Xxxxx Investor Nominees are removed from the Board pursuant to Section 2.1(i) hereof, or (iii) there is a material breach of this Agreement by the Company that is not cured by the Company within ten days of the date on which the Xxxxx Investors provide the Company with notice of such breach. |
Section 1.2 Interpretation. When reference is made in this Agreement to a Section,
such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the
words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be
followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder”
and words of similar import when used in this Agreement shall refer to this Agreement as a whole
and not to any particular provision of this Agreement. The word “or” shall not be exclusive. This
Agreement shall be construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be drafted.
ARTICLE II
COVENANTS
COVENANTS
Section 2.1 Board of Directors, Annual Meeting and Related Matters.
| (a) | Board Expansion. Following the date hereof but prior to the 2008 Annual Meeting, the Company shall increase the size of the Board from eight to nine directors. | ||
| (b) | 2008 Annual Meeting. The Company shall use all reasonable best efforts to cause the 2008 Annual Meeting to be held and the election of directors thereat to be conducted on the scheduled date of May 28, 2008 and shall not delay or postpone such meeting date or election, unless a quorum is not obtained, in which case as promptly thereafter as practicable; provided, however, in the event the election of directors at the 2008 Annual Meeting does not occur on May 28, 2008, then, not later than May 28, 2008, the Company shall appoint and elect the Xxxxx Investor Nominees to the Board as the first matter of business to be conducted at a meeting of the Board on such date to enable the Xxxxx Investor Nominees to fully participate thereafter in such meeting. | ||
| (c) | Replacement Directors. If at any time during the Restricted Period any Xxxxx Investor Nominee refuses to serve, or is unable or unwilling to serve as a director |
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| of the Company as a result of such Xxxxx Investor Nominee’s death, incapacity, or otherwise, but specifically excluding failure to be elected at the 2008 Annual Meeting, then the Xxxxx Investors shall be entitled to designate another individual as a replacement Xxxxx Investor Nominee subject to the consent of the Company, such consent not to be unreasonably withheld, delayed or conditioned (any such replacement Xxxxx Investor Nominee, a “Replacement Xxxxx Nominee”), and such Replacement Xxxxx Nominee shall be deemed a Xxxxx Investor Nominee for all purposes of this Agreement; provided, however, that the Company’s objection to a proposed Replacement Xxxxx Nominee shall be deemed reasonable if, among other reasonable bases for objection, (i) such individual is an officer or director of a company or organization which derives more than twenty (20%) percent of its revenues or profits, on a consolidated basis, from the development, ownership, management or licensing of hotels, resorts, motels, theme parks, water parks, or similar hospitality or entertainment-oriented enterprise, and (ii) such individual does not meet all other criteria for board membership as established by the Board’s Nominating and Governance Committee applicable to all directors generally. In proposing an individual as a Replacement Xxxxx Nominee pursuant to the immediately preceding sentence, the Xxxxx Investors shall provide the Company with such information regarding such individual as would be required to nominate such individual as a director pursuant to Section 10 of Article 2 of the Company’s Bylaws. In the event of the death, resignation or retirement from the Board of any Xxxxx Investor Nominee during the Restricted Period, the Board shall, as promptly thereafter as practicable, cause such Xxxxx Investor Nominee to be replaced with a Replacement Xxxxx Nominee. | |||
| (d) | Committees of the Board. Concurrently with the appointment and election of the Xxxxx Investor Nominees pursuant to Section 2.1, and throughout the Restricted Period, the Board shall ensure that at least one Xxxxx Investor Nominee or Replacement Xxxxx Nominee shall be a member of at least two of the existing three committees of the Board and of any additional committee and subcommittee of the Board that may be created subsequent to the date hereof; provided, however, that any such Xxxxx Investor Nominee or Replacement Xxxxx Nominee meets any criteria for such position as required by NASDAQ rules or rules and regulations established by the SEC. | ||
| (e) | Nomination of New Directors. The Company agrees that at the 2008 Annual Meeting, the Board will: |
| (1) | nominate each of the Xxxxx Investor Nominees and the Third Nominee as a director of the Company whose term shall expire at the Company’s 2009 Annual Meeting of Stockholders; and | ||
| (2) | solicit proxies for and vote in favor of the Xxxxx Investor Nominees and the Third Nominee at the 2008 Annual Meeting. |
| (f) | Efforts. The Company shall use all reasonable best efforts to ensure that each of the Xxxxx Investor Nominees and the Third Nominee is elected by the stockholders at the 2008 Annual Meeting. |
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| (g) | Role of Xxxxx Investor Nominees. Each of the Xxxxx Investor Nominees, upon election to the Board, will be governed by the same protections and obligations regarding confidentiality, conflicts of interests, fiduciary duties, trading and disclosure policies and other governance guidelines (it being understood that such policies shall not restrict the activities of the Xxxxx Investors other than any Xxxxx Investor Nominee) and shall have the same rights and benefits, including with respect to insurance, indemnification, compensation and fees, as are applicable to all independent directors of the Company. | ||
| (h) | Proxy Solicitation Materials. The Company and the Board agree that the Company’s Proxy Statement and proxy cards for the 2008 Annual Meeting and all other solicitation materials to be delivered to stockholders in connection with the 2008 Annual Meeting (excepting any materials delivered prior to the date hereof) shall be prepared in accordance with, and in furtherance of, this Agreement. The Company will provide the Xxxxx Investors with copies of any portion of proxy materials or other solicitation materials that contain statements relating to the Xxxxx Investors, the Xxxxx Investor Nominees or this Agreement a reasonable period (and, in any event, at least one business day) in advance of filing such materials with the SEC or disseminating the same in order to permit the Xxxxx Investors a reasonable opportunity to review and comment on such materials. The Xxxxx Investors will provide, as promptly as reasonably practicable, all information relating to the Xxxxx Investor Nominees (and other information, if any) to the extent required under applicable law to be included in the Company’s Proxy Statement and any other solicitation materials to be delivered to stockholders in connection with the 2008 Annual Meeting. The Company’s Proxy Statement for the 2008 Annual Meeting shall contain the same type and tenor of information concerning the Xxxxx Investor Nominees as provided for the Company’s other director nominees. | ||
| (i) | Stock Ownership. If at any time during the Restricted Period the Xxxxx Investors together with their Affiliates fail to collectively beneficially own at least 60% of the number of shares of the Company they beneficially owned as of the date hereof, the Xxxxx Investors shall cause one Xxxxx Investor Nominee selected by the Xxxxx Investors to promptly tender his resignation from the Board. If at any time during the Restricted Period the Xxxxx Investors together with their Affiliates fail to collectively beneficially own at least 40% of the number of shares of the Company they beneficially owned as of the date hereof, the Xxxxx Investors shall cause each Xxxxx Investor Nominee to promptly tender his resignation from the Board. |
Section 2.2 Voting Provisions. In connection with the 2008 Annual Meeting, subject to
the full compliance by the Company of this Agreement, the Xxxxx Investors, together with their
respective Affiliates, will cause all shares of Common Stock, $0.01 par value, of the Company (the
“Common Stock”) for which they have the right to vote as of the record date for the 2008
Annual Meeting to be present for quorum purposes and to be voted at such meeting or at any
adjournments or postponements thereof, (a) in favor of each director nominated and recommended by
the Board for election at such meeting and (b) against any stockholder nominations for director
which are not approved and recommended by the Board for election at such meeting.
Section 2.3 Other Actions by the Xxxxx Investors. Each of the Xxxxx Investors agrees
that, subject to the full compliance by the Company of this Agreement, in connection with the 2008
Annual
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Meeting and regarding nominees for director of the Company, neither it nor any of its
Affiliates will, without the written consent of the Company, directly or indirectly solicit proxies
or written consents of stockholders or make any shareholder proposals.
Section 2.4 Additional Undertakings by the Xxxxx Investors. By executing this
Agreement, subject to the full compliance by the Company of this Agreement, the Xxxxx Investors
hereby irrevocably withdraw their Nomination Letter and agree to terminate the pending proxy
contest with respect to the election of directors at the 2008 Annual Meeting.
Section 2.5 Publicity. Promptly after the execution of this Agreement, the Company and
the Xxxxx Investors will issue a joint press release in the form attached hereto as Schedule
B.
ARTICLE III
OTHER PROVISIONS
Section 3.1 Representations and Warranties.
| (a) | Representations and Warranties of the Company. The Company hereby represents and warrants that (i) this Agreement and the performance by the Company of its obligations hereunder (A) has been duly authorized, executed and delivered by it, and is a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, (B) does not require the approval of the stockholders of the Company and (C) does not and will not violate any law, any order of any court or other agency of government, the Certificate of Incorporation of the Company, as amended, or the Bylaws of the Company, as amended, or any provision of any indenture, agreement or other instrument to which the Company or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such indenture, agreement or other instrument, or result in the creation or imposition of, or give rise to, any lien, charge, restriction, claim, encumbrance or adverse penalty of any nature whatsoever pursuant to any such indenture, agreement or other instrument, (ii) attached hereto as Exhibit 1 is a true and complete copy of the Unanimous Written Consent of the Board approving this Agreement and appointing and electing the Xxxxx Investor Nominees to the Board, and (iii) as of the date hereof, there are only three committees of the Board and no subcommittees. | ||
| (b) | Representations and Warranties of the Xxxxx Investors. Each of the Xxxxx Investors represents and warrants that this Agreement and the performance by each such Xxxxx Investor of its obligations hereunder (i) has been duly authorized, executed and delivered by such Xxxxx Investor, and is a valid and binding obligation of such Xxxxx Investor, enforceable against such Xxxxx Investor in accordance with its terms, (ii) does not require approval by any owners or holders of any equity interest in such Xxxxx Investor (except as has already been obtained) and (iii) does not and will not violate any law, any order of any court or other agency of government, the charter or other organizational documents of such Xxxxx Investor, as amended, or any provision of any agreement or other instrument to which such Xxxxx Investor or any of its properties or assets is bound, or conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any such agreement or |
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| other instrument, or result in the creation or imposition of, or give rise to, any lien, charge, restriction, claim, encumbrance or adverse penalty of any nature whatsoever pursuant to any such agreement or instrument. Each Xxxxx Investor hereby further represents and warrants that, as of the date hereof, it is the beneficial owner of such number of shares of Common Stock as are set forth with respect to such Xxxxx Investor on Schedule A of this Agreement. |
Section 3.2 Confidentiality. The Company has no obligation to furnish Confidential
Information to the Xxxxx Investors or its representatives by virtue of this Agreement except for
Confidential Information provided to the Xxxxx Investor Nominees in their capacity as directors
(and as nominees for director) of the Company. Each of the Xxxxx Investors hereby acknowledges
that it is aware that federal and state securities laws prohibit any person trading any security of
the Company on the basis of material, non-public information received from or on behalf of the
Company or from a source other than the Company known by you to be bound by a fiduciary
relationship with the Company or by a confidentiality agreement with or other contractual
obligation of confidentiality to the Company or another party or from communicating such
information to any other person under circumstances in which it is reasonably foreseeable that such
person is likely to trade in such securities. Each of the Xxxxx Investors agrees to comply with
such laws. The term “Confidential Information” shall mean any information that is
confidential to the Company; provided that Confidential Information will not include information
which (i) becomes lawfully available to the public other than as a result of a disclosure by the
Xxxxx Investors or its representatives, (ii) was lawfully available to the Xxxxx Investors on a
non-confidential basis prior to its disclosure to the Company or its representatives by the Company
or on its behalf or (iii) lawfully becomes available to the Xxxxx Investors on a non-confidential
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 the Xxxxx
Investors have been made aware.
Section 3.3 Remedies.
| (a) | Each party hereto hereby acknowledges and agrees, on behalf of itself and its Affiliates, that irreparable harm would occur in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties will be entitled to specific relief hereunder, including an injunction or injunctions to prevent and enjoin breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in Chancery Court (or other state court with subject matter jurisdiction) or federal court in the State of Delaware, in addition to any other remedy to which they may be entitled at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived. | ||
| (b) | Each party hereto agrees, on behalf of itself and its Affiliates, that any actions, suits or proceedings arising out of or relating to this Agreement or the transactions contemplated hereby will be brought solely and exclusively in Chancery Court (or other state court with subject matter jurisdiction) or federal court in the State of Delaware (and the parties agree not to commence any action, suit or proceeding relating thereto except in such courts), and further agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in Section 3.5 will be effective service of process for any such action, suit or proceeding brought against any party in any such court. Each party, on behalf of itself and its Affiliates, irrevocably and |
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| unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby, in the Chancery Court (or other state court with subject matter jurisdiction) or federal courts the State of Delaware, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an improper or inconvenient forum. |
Section 3.4 Entire Agreement. This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and may be amended only by an agreement in
writing executed by the parties hereto.
Section 3.5 Notices. All notices, consents, requests, instructions, approvals and
other communications provided for herein and all legal process in regard hereto shall be in writing
and shall be deemed validly given, made or served, immediately (a) if delivered personally or given
by telecopy (which is confirmed) to the number provided in this subsection, or (b) within five
business days after being mailed by registered or certified mail (or such shorter time if delivered
by overnight carrier with evidence of delivery) at the address specified in this subsection:
if to the Company: |
Great Wolf Resorts, Inc. | |
| 000 Xxxx Xxxxxxxxxx Xxxxxx | ||
| Xxxxx 000 | ||
| Xxxxxxx XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: General Counsel | ||
with a copy to: |
Xxxxxxx Xxxx & Xxxxxxxxx LLP | |
| 000 Xxxx Xxxxxxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxxxxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxxx X. Xxxxxx | ||
if to the Xxxxx Investors: |
Xxxxx Capital Advisors LLC | |
| 0000 Xxxxxxxxx Xxxxx, X.X. | ||
| Xxxxxxxxxx, X.X. 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxx X. Xxxxx, Xx. | ||
with a copy to: |
Xxxxxxx XxXxxxxxx LLP | |
| 000 Xxxxx Xxxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxx Xxxxxxx, XX 00000-0000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxx X. Xxxxxxx |
Section 3.6 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware.
Section 3.7 Further Assurances. Each party agrees to take or cause to be taken such
further actions, and to execute, deliver and file or cause to be executed, delivered and filed such
further
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documents and instruments, and to obtain such consents, as may be reasonably required or requested
by the other party in order to effectuate fully the purposes, terms and conditions of this
Agreement.
Section 3.8 Third-Party Beneficiaries. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and assigns, and nothing in
this Agreement is intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
Section 3.9 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument. A facsimile copy of any executed counterpart hereof shall have the same legal
effect as the original.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement, or caused the same
to be executed by its duly authorized representative, as of the date first above written.
| GREAT WOLF RESORTS, INC. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| XXXXX INVESTORS: | ||||||
| By: | ||||||
| By: | ||||||
| By: | ||||||
| Xxxxx Capital Advisors LLC | ||||||
| By: | ||||||
Financial Institution Partners, L.P. |
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| By: | ||||||
Financial Institution Partners, Ltd. |
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| By: | ||||||
Financial Institution Partners III, L.P. |
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| By: | ||||||
Financial Institution Partners IV, L.P. |
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| By: | ||||||
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SCHEDULE A
As of May 9, 2008, the Xxxxx Investors together with their Affiliates collectively
beneficially own an aggregate of 1,734,974 shares of Common Stock. The beneficial ownership of each
of the Xxxxx Investors is as follows:
| 1. | Xxxx X. Xxxxx may be deemed to be the beneficial owner of 1,730,974 shares of Common Stock. |
| 2. | Xxxxxxx X. Xxxxx, Xx. may be deemed to be the beneficial owner of 1,666,478 shares of Common Stock. |
| 3. | Xxxxxx X. Xxxxx may be deemed to be the beneficial owner of 28,140 shares of Common Stock. |
| 4. | Xxxxx Capital Advisors LLC may be deemed to be the beneficial owner of 1,643,163 shares of Common Stock. |
| 5. | Financial Institution Partners, L.P. may be deemed to be the beneficial owner of 630,156 shares of Common Stock. |
| 6. | Financial Institution Partners, Ltd. may be deemed to be the beneficial owner of 307,570 shares of Common Stock. |
| 7. | Financial Institution Partners III, L.P. may be deemed to be the beneficial owner of 331,835 shares of Common Stock. |
| 8. | Financial Institution Partners IV, L.P. may be deemed to be the beneficial owner of 72,527 shares of Common Stock. |
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SCHEDULE B
[GREAT WOLF LETTERHEAD]
Press Release
Contacts:
|
Great Wolf Resorts, Inc. | |
| For Xxxxx Capital Advisors LLC |
GREAT WOLF RESORTS, INC. AND XXXXX CAPITAL ADVISORS LLC
PARTNERS AGREE TO SETTLE PROXY CONTEST
PARTNERS AGREE TO SETTLE PROXY CONTEST
Madison, Wisconsin, May 12, 2008 — Great Wolf Resorts, Inc. (the “Company”) announced today that
the Company and Xxxxx Capital Advisors LLC (“HCA”) have reached an agreement (the “Agreement”)
under which Xxxx X. Xxxxx and Xxxxxxx X. Xxxxxx III wil be added to the Board of Directors of the
Company. Pursuant to the Agreement, the Company has agreed to include those two individuals as
nominees on its slate of director candidates to be nominated by the Board for election at the 2008
annual meetings of stockholders as well as a third nominee reasonably acceptable to HCA. The 2008
annual meeting of stockholders is currently scheduled for May 28, 2008. In connection with the
Agreement, HCA has agreed to cease its efforts to elect a slate of three nominees to the Board at
the 2008 annual meeting.
Xxxxx Xxxxxxxx, the Company’s interim Chief Executive Officer, said “We are pleased to have reached
an agreement with HCA. Management welcomes the perspectives and insights of our new directors.”
Xxxx X. Xxxxx stated, “Our nominees look forward to working with the other directors and management
to build and deliver value for all stockholders.”
About Great Wolf Resorts, Inc.
Great Wolf Resorts, Inc.® (NASDAQ: WOLF), Madison, Wis., is North America’s largest
family of indoor waterpark resorts, and, through its subsidiaries and affiliates, owns and operates
its family resorts under the Great Wolf Lodge® and Blue Harbor Resort™
brands. Great Wolf Resorts is a fully integrated resort company and owns and/or manages Great Wolf
Lodge locations in: Wisconsin Dells, Wis.; Sandusky, Ohio; Traverse City, Mich.; Kansas City, Kan.;
Williamsburg, Va.; the Pocono Mountains, Pa.; Niagara Falls, Ontario; Mason, Ohio; Grapevine,
Texas; and Grand Mound, Wash.; and Blue Harbor Resort & Conference Center in Sheboygan, Wis. Great
Wolf Lodge in Concord, N.C. is currently under construction.
The company’s resorts are family-oriented destination facilities that generally feature 300 – 400
rooms and a large indoor entertainment area measuring 40,000 – 100,000 square feet. The all-suite
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properties offer a variety of room styles, arcade/game rooms, fitness rooms, themed
restaurants, spas, supervised children’s activities and other amenities. Additional information
may be found on the company’s Web site at xxx.xxxxxxxxx.xxx.
About Xxxxx Capital Advisors LLC
Xxxxx Capital Advisors LLC provides specialized investment management services to a series of
proprietary long/short equity hedge funds. Xxxxx Capital Advisors LLC is registered as an
Investment Adviser with the Securities and Exchange Commission. Since 1994, the firm has invested
primarily in publicly traded and closely held companies in the financial services and real-estate
related sectors, utilizing the knowledge and experience of its principals and affiliates to
identify attractive investment opportunities and strategically position investment portfolios to
capitalize on changing market and economic trends in an effort to generate positive returns across
various economic and interest rate cycles.
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EXHIBIT 1
UNANIMOUS WRITTEN CONSENT OF THE BOARD
APPROVING THIS AGREEMENT AND APPOINTING THE XXXXX INVESTOR NOMINEES
APPROVING THIS AGREEMENT AND APPOINTING THE XXXXX INVESTOR NOMINEES
[Following this page]
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The undersigned, being all of the directors of the corporation (the “Company”), do hereby,
pursuant to Section 141(f) of the General Corporation Law of Delaware, take the following actions:
1. Agreement with Xxxxx Capital Advisors.
WHEREAS, Xxxxx Capital Advisors has initiated a Proxy contest with the Company and has
proposed three nominees to the Company’s Board of Directors to be elected at the 2008 Annual
Meeting of Shareholders (the “2008 Annual Meeting”);
WHEREAS, the Company has reviewed the Proxy Statement and other materials filed by Xxxxx
Capital Advisors; and
WHEREAS, the Company believes it is in the best interests of the Company to reach an agreement
with Xxxxx Capital Advisors to nominate two of Xxxxx Capital Advisors’ nominees to the Board.
RESOLVED, that the agreement between the Company and Xxxxx Capital Advisors, et al. in the
form attached to this Consent (the “Xxxxx Agreement”) is hereby approved and adopted.
FURTHER RESOLVED, that the proper officers of the Company be, and they are hereby, authorized
and directed to execute the Xxxxx Agreement and take whatever further action is required to give
full force and effect to the foregoing resolution.
2. Amendment of Bylaws.
WHEREAS, in connection with execution of the Xxxxx Agreement, the Company has agreed to amend
its Bylaws to provide that the number of directors of the Company shall be nine (9).
RESOLVED, that pursuant to Article III, Section 2(a) of the Company’s Bylaws, the Board of
Directors does hereby fix the number of directors of the Company at nine (9).
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3. Acceptance of Nominating Committee’s Recommendations.
RESOLVED, that the Board hereby accepts the Nominating Committee’s recommendation to nominate
Xxxx Xxx as a director to be elected at the 2008 Annual Meeting to fill the seat being vacated by
Xxxx Xxxxx.
FURTHER RESOLVED that in connection with the Xxxxx Agreement, the Board has reviewed and
accepts the Nominating Committee’s evaluation and recommendation to nominate Xxxx X. Xxxxx and
Xxxxxxx X. Xxxxxx to the Board of Directors to be elected at the 2008 Annual Meeting.
FURTHER RESOLVED, that, in addition to Xxxx Xxx and Messrs. Xxxxx and Xxxxxx, the Board of
Directors hereby nominates Xxxxxx X. Xxxxxxxx, Xxxx Xxxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxxxx X.
Xxxxxxx, Xxxxxx X. Xxxxx and Xxxxxx X. Silver as directors of the Company to be elected at the 2008
Annual Meeting.
4. Change of Date of Annual Meeting.
RESOLVED, that the Board of Directors hereby designates May 28, 2008, as the date of the 2008
Annual Meeting. Such meeting will be held at 10:00 a.m. Central time at 000 Xxxx Xxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000.
Dated May 9, 2008.
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