Exhibit 10.2
EXECUTION VERSION
SETTLEMENT AGREEMENT
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THIS SETTLEMENT AGREEMENT (the "Agreement") dated as of August 30,
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2006 (the "Effective Date") by and among Xxxxxxxx Corporation, a Missouri
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corporation (the "Company"), Xxxxxx Xxxxxxx LLC, a Delaware limited
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liability company ("Xxxxxx Xxxxxxx"), Xxxxx Xxxxx Fund LP, a Delaware
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limited partnership ("Xxxxx Xxxxx"), Xxxxx Xxxxx Offshore Fund LTD, a
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British Virgin Islands international business company ("Xxxxx Xxxxx
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Offshore" and, together with Xxxxxx Xxxxxxx and Xxxxx Xxxxx, "Pirate").
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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
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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
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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
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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
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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
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Section 1.1 Certain Definitions. As used in this Agreement, the
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following terms will have the meanings specified below:
"Affiliate" has the meaning set forth in Rule 12b-2 of the General
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Rules and Regulations under the Exchange Act.
"Applicable Law" means all applicable provisions of all (a)
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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
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amended, restated or supplemented from time to time.
"Associate" has the meaning ascribed to such term in Rule 12b-2 of
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the General Rules and Regulations of the Exchange Act.
"Beneficial Owner" A Person will be deemed the "Beneficial Owner"
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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
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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
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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
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Directors, the term of which expires at the 2007 annual meeting of the
Company's shareholders.
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"Class III Director" means a member of the class of the Board of
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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.
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"Disinterested Directors" means those members of the Board of
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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
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amended, and the rules and regulations thereunder.
"Governmental Authority" means any federal, state, local or
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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
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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
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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
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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.
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"Vote" means, as to any entity, the ability to cast a vote at a
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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
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outstanding as at such date.
"Voting Securities" means the Common Stock and any other securities
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of the Company having the right to Vote.
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Section 1.2 Interpretation and Construction of this Agreement. The
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definitions in Section 1.1 will apply equally to both the singular and
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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
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Section 2.1 Representations and Warranties by Pirate. Pirate
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Capital, 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)
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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
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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
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Company represents and warrants to Pirate as follows:
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(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
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Section 3.1 Covenants. Pirate will not submit any proposals or
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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
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"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);
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(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
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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
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Directors. The Company has shifted two of the members of the Classes of the
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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:
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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
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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
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Agreement.
Section 3.5 Press Releases, Etc.
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(a) Each Party (including, for purposes of this Section 3.5,
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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
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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
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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
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survive the termination of this Agreement for two (2) years.
Section 3.7 Quorum. Pirate will use reasonable efforts to ensure
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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
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Section 4.1 Termination. Except with respect to Sections 3.4 and
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3.6, the provisions of this Agreement will terminate at the conclusion of
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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
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Section 5.1 Notices. All notices, requests and other communications
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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
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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
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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.
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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
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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,
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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
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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
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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
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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
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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
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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
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Process. This Agreement will be governed by and construed in accordance with
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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
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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
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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
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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]
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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
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Name: Xxxxxx X. Xxxx
Title: Vice President and General Counsel
XXXXXX XXXXXXX LLC
By: /s/ Xxxxxx X. Xxxxxx
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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
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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
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Name: Xxxxxx X. Xxxxxx, Xx.
Title: Managing Member
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SCHEDULE 2.1(D)
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Xxxxx Xxxxx Fund LP 148,190 shares
Xxxxx Xxxxx Fund Offshore Fund Ltd. 1,061,057 shares
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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.
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