Exhibit 99.2
JOINT FILING AND SOLICITATION AGREEMENT
WHEREAS, certain of the undersigned are stockholders, direct or
beneficial, of Xxxx'x, Inc., a Delaware corporation (the "Company");
WHEREAS, Starboard Value and Opportunity Master Fund Ltd., a Cayman
Islands exempted company ("Starboard"), Parche, LLC, a Delaware limited
liability company ("Parche"), RCG Starboard Advisors, LLC, a Delaware limited
liability company, Ramius Capital Group, L.L.C., a Delaware limited liability
company ("Ramius Capital"), C4S & Co., L.L.C., a Delaware limited liability
company, Xxxxx X. Xxxxx, Xxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx,
Xxxxxxx Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxx and Xxxxx X. Xxxxx wish to
form a group for the purpose of seeking representation on the Board of Directors
of the Company at the 2008 annual meeting of stockholders of the Company, or any
other meeting of stockholders held in lieu thereof, and any adjournments,
postponements, reschedulings or continuations thereof (the "2008 Annual
Meeting") and for the purpose of taking all other action necessary to achieve
the foregoing.
NOW, IT IS AGREED, this 17th day of October 2007 by the parties hereto:
1. In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), each of the undersigned
(collectively, the "Group") agrees to the joint filing on behalf of each of them
of statements on Schedule 13D, and any amendments thereto, with respect to the
securities of the Company. Each member of the Group shall be responsible for the
accuracy and completeness of his/its own disclosure therein, and is not
responsible for the accuracy and completeness of the information concerning the
other members, unless such member knows or has reason to know that such
information is inaccurate. Ramius Capital or its representative shall provide
each member of the Group with copies of all Schedule 13D filings and other
public filings to be filed on behalf of such member at least 24 hours prior to
the filing or submission thereof.
2. So long as this agreement is in effect, each of the undersigned shall
provide written notice to Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Wolosky LLP
("Xxxxxx") of (i) any of their purchases or sales of securities of the Company;
or (ii) any securities of the Company over which they acquire or dispose of
beneficial ownership. Notice shall be given no later than 24 hours after each
such transaction.
3. Each of the undersigned agrees to form the Group for the purpose of
soliciting proxies or written consents for the election of the persons nominated
by the Group to the Board of Directors of the Company at the 2008 Annual Meeting
and for the purpose of taking all other actions incidental to the foregoing.
4. Starboard and Parche shall have the right to pre-approve all expenses
incurred in connection with the Group's activities and agree to pay directly all
such pre-approved expenses on a pro rata basis between Starboard and Parche
based on the number of Shares in the aggregate beneficially owned by each of
Starboard and Parche on the date hereof.
3. Each of the undersigned agrees that any SEC filing, press release or
stockholder communication proposed to be made or issued by the Group or any
member of the Group in connection with the Group's activities set forth in
Section 4 shall be first approved by Ramius Capital, or its representatives,
which approval shall not be unreasonably withheld.
6. The relationship of the parties hereto shall be limited to carrying on
the business of the Group in accordance with the terms of this Agreement. Such
relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing herein shall
be construed to authorize any party to act as an agent for any other party, or
to create a joint venture or partnership, or to constitute an indemnification.
Nothing herein shall restrict any party's right to purchase or sell securities
of the Company, as he/it deems appropriate, in his/its sole discretion, provided
that all such sales are made in compliance with all applicable securities laws.
7. This Agreement may be executed in counterparts, each of which shall be
deemed an original and all of which, taken together, shall constitute but one
and the same instrument, which may be sufficiently evidenced by one counterpart.
8. In the event of any dispute arising out of the provisions of this
Agreement or their investment in the Company, the parties hereto consent and
submit to the exclusive jurisdiction of the Federal and State Courts in the
State of New York.
9. Any party hereto may terminate his/its obligations under this Agreement
on 24 hours' written notice to all other parties, with a copy by fax to Xxxxxx
Xxxxxxx at Xxxxxx, Fax No. (000) 000-0000.
10. Each party acknowledges that Xxxxxx shall act as counsel for both the
Group and Ramius Capital and its affiliates relating to their investment in the
Company.
11. Each of the undersigned parties hereby agrees that this Agreement
shall be filed as an exhibit to a Schedule 13D pursuant to Rule 13d-1(k)(1)(iii)
under the Exchange Act.
2
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
PARCHE, LLC RCG STARBOARD ADVISORS, LLC
By: RCG Starboard Advisors, LLC, By: Ramius Capital Group, L.L.C.,
its managing member its sole member
STARBOARD VALUE AND OPPORTUNITY RAMIUS CAPITAL GROUP, L.L.C.
MASTER FUND LTD. By: C4S & Co., L.L.C.,
By: RCG Starboard Advisors, LLC, as managing member
its investment manager
C4S & CO., L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Authorized Signatory
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
XXXXXXX X. XXXXXXX
As attorney-in-fact for Xxxxx X.
Xxxxx, Xxxxxx X. Xxxxx and Xxxxxx X.
Xxxxxxx
/s/ Xxxxxxx X. Xxxxx
---------------------------
XXXXXXX X. XXXXX
As attorney-in-fact for Xxxxxxx Xxxxxx,
Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxx and
Xxxxx X. Xxxxx
