STOCKHOLDER AGREEMENT
Exhibit
99.1
THIS
STOCKHOLDER AGREEMENT (this “Agreement”), dated as
of July 28, 2008 (the “Effective Date”), is
made by and among Xxxxxxx Properties, Inc., a Maryland corporation (the “Company”), on the one
hand, and JMB Capital Partners Master Fund L.P., a Cayman Islands limited
partnership, Smithwood Advisers, L.P., a California limited partnership,
Smithwood General Partner, LLC, a California limited liability company, and
Smithwood Partners, LLC, a California limited liability company (all parties
other than the Company collectively, the “Stockholder Group”),
on the other hand.
WHEREAS,
the Company and the Stockholder Group have agreed that it is in their mutual
interests to enter into this Agreement, among other things, to set forth certain
agreements concerning the composition of the board of directors of the Company
and the Company’s 2008 Annual Meeting of Stockholders (including all
adjournments or postponements thereof (the “2008 Annual
Meeting”)), as hereinafter described.
NOW,
THEREFORE, in consideration of the premises and the representations, warranties,
and agreements contained herein, and other good and valuable consideration, the
parties hereto mutually agree as follows:
1. Nomination to the
Board.
(a) Increase in
Directorships. Promptly following the Effective Date (but in
no event later than July 30, 2008), the Board of Directors of the Company (the
“Board”) shall,
pursuant to the powers granted to the Board under Article III of the Bylaws of
the Company, increase the number of directorships by four until the time of the
2008 Annual Meeting. The Board shall promptly (but in no event
later than July 30, 2008 with respect to the two Stockholder Group Designees (as
defined below) identified below) elect Xxxx Xxxxxx (the “Compromise Director”)
and the Stockholder Group Designees to fill the new directorships so created on
the Board and to serve in such capacity from such date of election through the
date of the 2008 Annual Meeting and until their successors are duly elected
and qualify.
(b) 2008 Annual
Meeting. With respect to the 2008 Annual Meeting:
(i) the
Board and the Nominating and Corporate Governance Committee of the Board
(collectively, “Management”) shall
nominate and recommend the following individuals (“Stockholder Group
Designees”) for election as directors of the Company for a term that
expires at the 2009 Annual Meeting of Stockholders of the Company (the “2009 Annual Meeting”)
and until their successors are duly elected and qualify:
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an
individual to be named by the Stockholder Group, subject to the provisions
of Section 5(b);
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Xxxxx
Xxxxxx; and
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Xxxxxxxx
Xxxxxx;
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Xxxxxxxx
X. Xxxxxx;
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Xxxxxx
X. Van xx Xxxx; and
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Xxxxxx
X. Xxxxxxx;
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(iii) promptly
after their election as directors, the Board shall appoint Xxxxxxxx Xxxxxx to
the Compensation Committee, Xxxxx Xxxxxx to the Audit Committee and the third
Stockholder Group Designee to the Nominating and Corporate Governance Committee,
and each (or their Stockholder Group Replacement Director (as defined below))
shall serve on such committee during the term of this
Agreement. Committee appointments of the Stockholder Group Designees
shall be changed during the term of this Agreement only with the approval of a
majority of the Stockholder Group Designees. One Stockholder Group
Designee with the requisite qualifications selected by the Stockholder Group
Designees shall also be appointed by the Board to any additional Board committee
created during the term of this Agreement; and
(iv) the
Board and each member of the Stockholder Group shall use their reasonable best
efforts to support the election to the Board of each of Xxxxxx Xxxxxx, Xxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxxxx, the Compromise Director and the Stockholder Group
Designees at the 2008 Annual Meeting.
(c) Effective
as of the 2008 Annual Meeting and thereafter during the term of this Agreement,
(i) the number of directorships on the Board shall be seven, (ii) the Board
shall not increase or decrease the number of directorships for service during
such period (although the number of directorships for service as of and
following the 2009 Annual Meeting may be increased or decreased if notice of
such increase or decrease is given to the Stockholder Group on or before the
date that is twenty (20) days prior to the advance notification deadline in the
respect of the 2009 Annual Meeting) without the approval of a majority of the
Stockholder Group Designees, and (iii) the Board shall not adversely revise the
exculpation provisions in the Company’s Charter or the indemnification or
expense advance provisions in the Company’s Bylaws, as either applies to any
officers or directors of the Company as of the date of this
Agreement. The parties agree that the 2009 Annual Meeting shall not
be held prior to October 2, 2009.
2. Representations and
Warranties of Stockholder Group. Each
member of the Stockholder Group hereby represents and warrants to the Company as
follows:
(a) The
Stockholder Group has beneficial ownership of 4,650,000 shares of common stock
of the Company (the “Common Stock”) and
has full and complete authority to enter into this Agreement and to
vote and otherwise act with respect to the entire number of shares of the
Common Stock which it or any of its members holds, or may hold, including any
shares purchased in the future, in accordance with the terms of this
Agreement. No “affiliate” or “associate” (as such terms are defined
in the Securities Exchange Act of 1934, as amended (the “Exchange Act “)) of
the Stockholder Group beneficially owns any shares or rights to acquire shares
of the Common Stock. No member of the Stockholder Group or
Stockholder Group
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Designee
or any affiliate thereof has engaged in any hedging or other transaction or
series of transactions or any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of shares), the effect
or intent of which is to mitigate loss to or manage risk or benefit of share
price changes for, or to increase or decrease the voting power of, such member
or Stockholder Group Designee with respect to any share of stock or other
security of the Company.
(b) There
are no other arrangements, agreements or understandings between the Stockholder
Group and the Company or Management except as set forth in this
Agreement.
3. Representations, Warranties and Covenants of the Company.
(a) The
Company hereby represents and warrants to the Stockholder Group that there are
no other arrangements, agreements or understandings between the Stockholder
Group and the Company or Management except as set forth in this
Agreement.
(b) The
Company agrees to notify Xxxx Xxxxxx of Xxxxxxx Xxxx & Xxxxx, and Xxxxx
Xxxxxx, by telephone and email, and Xxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx and
Xxxxxxxx Xxxxxx (together, the “Proposal Notice
Recipients”) by email, at the numbers and email addresses in Section
16(b) below, immediately following the receipt by the Company of any proposal or
notice of nomination in respect of the 2008 Annual Meeting if such proposal or
notice is received prior to 11:59 pm on the last date on which nominations or
proposals submitted to the Company for consideration at the 2008 Annual Meeting
would be considered timely under the Company's Bylaws (which date the Company
has informed the Stockholder Group is August 3, 2008 (as such date may be
extended should a court so determine, the “Advance Notice Termination
Deadline”)). In the event that such a proposal or notice is
received, the Company agrees that the Stockholder Group shall have 24 hours from
the time the Company notifies the Proposal Notice Recipients of receipt of a
proposal or notice to submit a notice of its intent to nominate directors and to
make any other proposals it deems necessary (the “JMB Nomination
Notice”). The Company agrees that the JMB Nomination Notice, if received
within such 24 hour period, shall be considered timely for purposes of the
Company's Bylaws and for all other purposes, and the Company waives any claim
that such notice and the nominations contained therein are invalid under the
Company's Bylaws or otherwise.
4. Conditions and Covenants of
the Stockholder Group.
(a) Condition to
Nomination. The continued service of the Stockholder Group
Designees as directors prior to the 2008 Annual Meeting and the nomination of
the Stockholder Group Designees for election to the Board by Management for the
2008 Annual Meeting shall be subject to the condition that no “person” or
“group” (for purposes of this Agreement, as such terms are defined and used in
the Exchange Act) other than the Stockholder Group shall have submitted a
proposal or nominee or slate of nominees for election to the Board prior to the
Advance Notice Termination Deadline.
(b) Covenants of the Stockholder
Group. At all times from and after the date hereof until the
termination of this Agreement, each member of the Stockholder Group shall, and
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shall
cause the Stockholder Group Designees to, comply with the following covenants
and provisions:
(i) Until
the termination of this Agreement, the Stockholder Group shall, and shall cause
each of the Stockholder Group Designees to, support each of Management’s
nominees and the Compromise Director for election as a director at the 2008
Annual Meeting. Effective as
of August 4, 2008, assuming the condition set forth in Section 4(a) has been
met, the Stockholder Group agrees, and shall cause each of the Stockholder Group
Designees, to irrevocably withdraw any proposal, proposed nominee or slate of
nominees with respect to the 2008 Annual Meeting and the Company may treat any
such proposal or nomination as null and void and not include such proposal or
nomination in the Company’s proxy statement or allow it to be presented at the
2008 Annual Meeting. From and after August 4, 2008 until the
termination of this Agreement, (i) the Stockholder Group shall not, and shall
cause each of the Stockholder Group Designees not to, submit any proposal
or nomination to the Company including any proposal to nominate any individual
or group of members for election to the Board, and (ii) the Company shall be
entitled to treat any such proposal or nomination as null and void and not
include such proposal or nomination in the Company’s proxy statement or allow it
to be presented at the 2008 Annual Meeting.
(ii) Concurrently
with the execution of this Agreement (or upon election as a director with
respect to the third Stockholder Group Designee or any Stockholder Group
Replacement Director), the Stockholder Group shall cause each Stockholder Group
Designee to deliver to the Company an executed, blank-dated irrevocable
resignation as a director in the form attached hereto as Exhibit A, which
shall be effective upon: (A) any termination of this Agreement pursuant to the
terms set forth herein; (B) any death or disability of such Stockholder Group
Designee; (C) the termination of employment of such Stockholder Group Designee
with the Stockholder Group, unless the Stockholder Group has otherwise
notified the Company in writing within ten (10) days of such termination that it
wishes such Stockholder Group Designee to continue as its designee at the time
of such termination; or (D) a reduction in the number of Stockholder Designees
pursuant to Section 11(a)(i), (ii) or (iii), respectively (with each Stockholder
Group Designee resignation specifying with respect to which subsection his
resignation relates).
5. Replacement of
Directors.
(a) Upon
the death, disability or resignation as a director of any director other than a
Stockholder Group Designee or the Compromise Director, the remaining
directors (excluding the Stockholder Group Designees and the Compromise
Director) shall be entitled to designate a replacement (the “Replacement
Director”) for the vacancy resulting therefrom. The
Replacement Director shall be promptly reviewed and recommended by the
Nominating and Corporate Governance Committee of the Board and elected by the
Board.
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(b) Upon
the death, disability or resignation (except pursuant to Section 11(a)) as a director of
any Stockholder Group Designee, the Stockholder Group shall be entitled to
designate a replacement (a “Stockholder Group
Replacement Director”) for any vacancy resulting
therefrom. The Stockholder Group Replacement Director shall be
promptly reviewed and recommended by the Nominating and Corporate Governance
Committee of the Board and elected by the Board, provided that the Board
(excluding the Stockholder Group Designees) does not advance a reasonable
objection to such Stockholder Group Replacement Director (in which case such
Stockholder Group Replacement Director shall not be elected), and provided
further, that if the Board (excluding the Stockholder Group Designees) does
advance a reasonable objection to such Stockholder Group Replacement Director,
the Stockholder Group shall be entitled to designate a further Stockholder Group
Replacement Director or Stockholder Group Replacement Directors subject to the
terms herein, until such time as a Stockholder Group Replacement Director is
elected to the Board.
(c) Upon
the death, disability or resignation as a director of the Compromise Director,
the remaining directors (excluding the Stockholder Group Designees) shall be
entitled to designate a replacement (a “Replacement Compromise Director”) for the
vacancy resulting therefrom. The Compromise Replacement Director
shall be promptly reviewed and recommended by the Nominating and Corporate
Governance Committee of the Board and elected by the Board, provided that the
Stockholder Group Designees do not advance a reasonable objection to such
Replacement Compromise Director (in which case such Replacement Compromise
Director shall not be elected), and provided further, that if the Stockholder
Group Designees do advance a reasonable objection to such Replacement Compromise
Director, the remaining directors (excluding the Stockholder Group Designees)
shall be entitled to designate a further Replacement Compromise Director or
Replacement Compromise Directors subject to the terms herein, until such time as
a Replacement Compromise Director is elected to the Board.
6. Stockholder Group’s
Prohibited Conduct.
(a) Except
as otherwise stated in this Agreement, until the termination of this Agreement,
each member of the Stockholder Group, together with the Stockholder Group
Designees and any and all of their affiliates, associates or other persons
acting in concert therewith, shall be prohibited from (and shall cause any such
person to refrain from):
(i) acquiring,
offering or proposing to acquire, directly or indirectly, or retaining ownership
of, any of the Common Stock in excess of the Stockholder Group’s current
“beneficial ownership” (for purposes of this Agreement, as such term is defined
under Section 13(d) of the Exchange Act) as of the date of this
Agreement;
(ii) forming,
joining or in any way participating in any “group” (for purposes of this
Agreement, as understood under Section 13(d) of the Exchange Act) with respect
to the Common Stock;
(iii) financing,
assisting or encouraging anyone to acquire beneficial ownership of the Common
Stock for the purpose of influencing control over the business or operations of
the Company;
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(v) seeking,
either alone or in concert with others, to (A) call any special meeting of
stockholders, (B) make or be the proponent of any stockholder proposal, (C)
nominate any person or group for election to, or make any request to increase or
decrease the number of members on, the Board (except as provided in this
Agreement), (D) remove any member of the Board (except any Stockholder Group
Designee), or (E) seek any additional representation on the Board (except as
provided in this Agreement);
(vi) entering
into a voting agreement, voting trust or similar agreement or arrangement, or
depositing any of the Common Stock into any voting trust, or subjecting any of
the Common Stock to any arrangement or understanding with respect to the voting
rights of the Common Stock (other than solely a proxy given with respect to the
2009 Annual Meeting);
(vii) making
any public announcement with respect to any proposal or offer involving, or
proposing to enter into, or assisting, encouraging or financing any other person
in connection with, directly or indirectly, any merger, consolidation, business
combination, tender or exchange offer, sale or purchase of assets or securities,
dissolution, liquidation, restructuring, recapitalization or any other
transaction of or involving the Company, except as required by law;
(viii) making
any public announcement or remarks (A) critical of the Company, its present or
former officers or directors, (B) in favor of any proposal opposed by a majority
of the Board, or (C) regarding any of the foregoing in this
section;
(ix) commencing
any litigation against the Company or its present or former officers or
directors, other than with respect to a breach of this Agreement;
(x) making
any public request to amend, waive or terminate this Agreement, or bringing any
action to contest the validity thereof; or
(xi) otherwise
taking, causing, promoting, supporting or financing others to take, any action
inconsistent with any of the foregoing in this section.
(b) Each
member of the Stockholder Group will be liable for any violation of Section 6(a)
by any member of the Stockholder Group or any of the Stockholder Group
Designees and any and all of their affiliates, associates or other persons
acting in concert therewith.
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7. Company Prohibited
Conduct. Except
as otherwise stated in this Agreement, until the termination of this Agreement,
Management, together with any or all of their affiliates, associates or other
persons acting in concert therewith, shall be prohibited from: making any public
announcement or remarks that constitute an ad hominem attack on or that
disparage the Stockholder Group or its officers, directors managers or partners
or any Stockholder Group Designee.
8. Voting. During
the term of this Agreement, each member of the Stockholder Group shall cause all
shares of the Common Stock beneficially owned by the Stockholder Group to be
present for quorum purposes at any annual or special meeting of stockholders,
and to be voted for each of the Management’s nominees for election as
directors.
9. Dispositions. Without
the prior written consent of the Company, each member the Stockholder Group
shall be prohibited from selling or otherwise transferring more than 240,000
shares of the Common Stock beneficially owned by it (treating all sales or
transfers by members of the Stockholder Group in the aggregate) to any person,
entity or group (“Third Party”) in a
negotiated transaction or series of related transactions, unless the Stockholder
Group obtains a representation from such Third Party stating that after such
sale or transfer, the Third Party would not beneficially own greater than 4.9%
of the Common Stock, and that the Stockholder Group has no reasonable grounds to
believe that such representation is not accurate.
10. Certification of
Ownership. Each
member of the Stockholder Group shall, upon request of the Company from time to
time, certify to the Company as to the amount of shares each member of the
Stockholder Group beneficially owns (determined in compliance with Schedule 13D
and Rule 13d-3 under the Exchange Act). The Stockholder Group
shall promptly disclose in reasonable detail to the Company if member of the
Stockholder Group or Stockholder Group Designee or any affiliate thereof has
engaged in any hedging or other transaction or series of transactions or any
other agreement, arrangement or understanding (including any short position or
any borrowing or lending of shares), the effect or intent of which is to
mitigate loss to or manage risk or benefit of share price changes for, or to
increase or decrease the voting power of, such member or Stockholder Group
Designee with respect to any share of stock or other security of the
Company.
11. Reduction of Stockholder
Group Designees and Termination.
(a) The
number of Stockholder Group Designees serving and entitled to serve as director
shall be reduced upon the occurrence of the following events:
(i) from
three members to two, upon the Stockholder Group having beneficial
ownership of less than 6.5% (determined in compliance with Schedule 13D and Rule
13d-3 under the Exchange Act) of the shares of the Common Stock outstanding as
of the date hereof;
(ii) from
two members to one, upon the Stockholder Group having beneficial ownership
of less than 5% (determined in compliance with Schedule 13D and Rule 13d-3 under
the Exchange Act) of the shares of the Common Stock outstanding as of the date
hereof; and
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(b) This
Agreement shall terminate upon the earliest of the following:
(i) prior
to the Advance Notice Termination Deadline, any person or group (other than the
Stockholder Group) shall have submitted a proposal for consideration at the 2008
Annual Meeting or nominee or slate of nominees for election to the Board at the
2008 Annual Meeting;
(ii) the
Stockholder Group having beneficial ownership of less than 3% (determined in
compliance with Schedule 13D and Rule 13d-3 under the Exchange Act) of the
shares of the Common Stock outstanding as of the date hereof;
(iii) any
person becoming the beneficial owner of more than 50% (determined in compliance
with Schedule 13D and Rule 13d-3 under the Exchange Act) of the Company’s voting
stock, including as a result of any merger, acquisition or other type of
business combination, provided, that the Stockholder Group has an opportunity to
sell or exchange the Common Stock beneficially owned by it in such transaction
pro rata with other public stockholders (it being understood that pro rata
participation excludes any different consideration received by Xx. Xxxxxx X.
Xxxxxxx III and related entities as a result of the Company’s contractual
obligations to provide tax deferral opportunities to them as of the date hereof
and consideration received by the Company’s officers, directors and
employees);
(iv) upon
any member of the Stockholder Group’s (together with any and all of their
affiliates, associates or other persons acting in concert therewith), or any
Stockholder Group Designee’s, engagement in any of the prohibited activities set
forth in Section 6(a) above (other than engagement in such activities that is
immaterial in the aggregate), following receipt of written notice from the
Company and a three (3) day opportunity to cure (if curable);
(v) upon
any other material breach of this Agreement by any member of the Stockholder
Group (together with any and all of their affiliates, associates or other
persons acting in concert therewith) or any of the Stockholder Designees,
following receipt of written notice from the Company and a three (3) day
opportunity to cure (if curable);
(vi) upon
any material breach of this Agreement by the Company, following receipt of
written notice from the Stockholder Group and a three (3) day opportunity to
cure (if curable);
(vii) immediately
prior to the 2009 Annual Meeting of Stockholders of the Company
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(ix) the
date on which there are no Stockholder Group Designees on the Board.
12. Release and
Waiver.
(a) The
Stockholder Group, for the benefit of the Company and each of the Company’s
controlling persons, officers, directors, stockholders, agents, affiliates,
employees, attorneys and assigns, past and present, in their capacity as such
(the Company and each such person being a “Company Released
Person”), hereby forever waives and releases, and covenants not to xxx,
any of the Company Released Persons for any claim or cause of action based on
any act, omission, or failure to act by the Company Released Persons, whether
known or unknown, which occurred prior to the Effective Date; provided, however,
this waiver and release and covenant not to xxx shall not include the right to
xxx to enforce the terms of this Agreement and does not extend to acts which are
criminal.
THE
STOCKHOLDER GROUP HEREBY ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY ITS LEGAL
COUNSEL, AND IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION
1542, WHICH PROVIDES AS FOLLOWS:
“A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.”
BEING
AWARE OF SAID CODE SECTION, THE STOCKHOLDER GROUP HEREBY EXPRESSLY WAIVES ANY
RIGHTS IT MAY HAVE THEREUNDER, AS WELL AS ANY OTHER STATUTES OR COMMON LAW
PRINCIPLES OF SIMILAR EFFECT.
(b) The
Company, for the benefit of any member of the Stockholder Group and each of such
member's controlling persons, officers, directors, stockholders, agents,
affiliates, employees, attorneys and assigns, past and present, in their
capacity as such (each such person being a “Stockholder Group Released
Person”), hereby forever waives and releases and covenants not to xxx,
for any claim or cause of action based on any act, omission or failure to act by
such Stockholder Group Released Person, whether known or unknown, which occurred
prior to the Effective Date; provided, however, that this waiver and release and
covenant not to xxx shall not include the right to xxx to enforce the terms of
this Agreement and does not extend to acts which are criminal.
THE
COMPANY HEREBY ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY ITS LEGAL COUNSEL, AND
IS FAMILIAR WITH THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH
PROVIDES AS FOLLOWS:
"A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
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OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
BEING
AWARE OF SAID CODE SECTION, THE COMPANY HEREBY EXPRESSLY WAIVES ANY RIGHTS IT
MAY HAVE THEREUNDER, AS WELL AS ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF
SIMILAR EFFECT.
(c) The
releases contained above shall survive the termination of the
Agreement.
13. Public
Announcement. The
parties shall disclose the existence of this Agreement within two (2) business
days after its execution pursuant to a joint press release in the form attached
hereto as Exhibit
B, and the Company shall file a corresponding Form 8-K; provided, however, that neither
party shall disclose the existence of this Agreement until the press release is
issued. The Stockholder Group shall file a corresponding amendment to
its Schedule 13D.
14. Material Nonpublic
Information. In
connection with this Agreement and the Stockholder Group’s ongoing relationship
with the Company, there may be instances in which material nonpublic information
concerning the Company will be divulged to members of the Stockholder Group or
its affiliates or associates who are not at that time members of the Board by
the Company, the Stockholder Group or the Stockholder Group
Designees. The Stockholder Group expressly acknowledges that federal
and state securities laws prohibit any person who misappropriates material
nonpublic information about a company from purchasing or selling securities of
such company, or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities. The Company represents to the
Stockholder Group that the requirement set forth in the Xxxxxxx Xxxxxxx Policy
that Covered Persons obtain the pre-clearance of the Compliance Officer prior to
trading in securities of the Company is applied by the Company only in the event
that there is in effect a general limitation on such trading applicable to all
Covered Persons (as defined in the Xxxxxxx Xxxxxxx Policy).
15. Remedies. The
Company and the Stockholder Group acknowledge and agree that a breach or
threatened breach by either party may give rise to irreparable injury
inadequately compensable in damages, and accordingly each party shall be
entitled to injunctive relief to prevent a breach of the provisions hereof and
to enforce specifically the terms and provisions hereof in any state or federal
court having jurisdiction, in addition to any other remedy to which such
aggrieved party may be entitled to at law or in equity. In the event
either party institutes any legal action to enforce such party’s rights under,
or recover damages for breach of, this Agreement, the prevailing party or
parties in such action shall be entitled to recover from the other party or
parties all costs and expenses, including but not limited to reasonable
attorneys’ fees, court costs, witness fees, disbursements and any other expenses
of litigation or negotiation incurred by such prevailing party or
parties.
16. Notices.
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(a) All
notice requirements and other communications (other than notices provided in
Section 3(b)) shall be deemed given when delivered or on the following business
day after being sent by overnight courier with a nationally recognized courier
service such as Federal Express, addressed to the Stockholder Group or the
Company as follows:
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The
Company:
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Xxxxxxxx
X. Xxxxxx
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Senior
Vice President, General Counsel and Secretary
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Xxxxxxx
Properties, Inc.
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000
X. Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
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With
a copy to:
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Julian
T.H. Xxxxxxxxxxx
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Xxxxxx
& Xxxxxxx LLP
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000
Xxxxx Xxxxx Xxxxxx
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
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The
Stockholder Group:
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Xxxxxxxx
Xxxxxx
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c/o
Smithwood Advisors, L.P.
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1999
Avenue of the Stars, Xxxxx 0000
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Xxx
Xxxxxxx, XX 00000
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With
a copy to:
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Xxxx
Xxxxxxxxxx
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Xxxxx
Xxxxxxxxx
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Xxxxxxx
Xxxx & Xxxxx LLP
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000
Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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(b) The
notice required by Section 3(b) shall be delivered to all the following
recipients at the following phone numbers and email addresses:
Xxxx
Xxxxxx: Phone (000) 000-0000;
email:Xxxxxxx.xxxxxx@xxx.xxx
Xxxxx
Xxxxxx:Phone(310) 000-0000; email:xxxxx@xxxxxxxxxx.xxx
Xxxxx
Xxxxxxxxx: Xxxxx.Xxxxxxxxx@xxx.xxx
Xxxx
Xxxxxxxxxx: Xxxx.Xxxxxxxxxx@xxx.xxx
Xxx
Xxxxxx: Xxx@xxxxxxxxxx.xxx
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17. Entire
Agreement. This
Agreement constitutes the entire agreement between the parties hereto pertaining
to the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions of the parties in
connection therewith not referred to herein.
18. Counterparts;
Facsimile. This
Agreement may be executed in any number of counterparts and by the parties
hereto in separate counterparts, and signature pages may be delivered by
facsimile, each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
19. Headings. The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.
20. Governing
Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Maryland, without regard to choice of law principles that
would compel the application of the laws of any other jurisdiction.
21. Severability. In
the event one or more of the provisions of this Agreement should, for any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein.
22. Successors and
Assigns. This
Agreement shall not be assignable by any of the parties to this
Agreement. This Agreement, however, shall be binding on successors of
the parties hereto.
23. Survival of Representations,
Warranties and Agreements. All
representations, warranties, covenants and agreements made herein shall survive
the execution and delivery of this Agreement. Section 3(b), Section
12, and Sections 16 through 27 and any claims arising out of or relating to
breaches of this Agreement occurring prior to the termination of this Agreement
(regardless if brought following the termination of this Agreement) shall
survive termination of this Agreement.
24. Amendments. This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by all of the parties
hereto.
25. Further
Action. Each
party agrees to execute any and all documents, and to do and perform any and all
acts and things necessary or proper to effectuate or further evidence the terms
and provisions of this Agreement.
26. Consent to
Jurisdiction. Each
of the parties hereby irrevocably submits to the exclusive jurisdiction of any
United States Federal or state court sitting in the State of Maryland in any
action or proceeding arising out of or relating to this Agreement and each of
the parties hereby irrevocably agrees that all claims in respect of such action
or proceeding may be heard and determined in any such court.
12
27. Expenses. Upon
receipt of satisfactory documentation, the Company shall be responsible for
certain reasonable expenses incurred by the Stockholder Group prior to the date
hereof in an amount of up to $100,000 in connection with the execution and
delivery of this Agreement by the Stockholder Group.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
13
IN
WITNESS WHEREOF, the Parties hereto have executed this Stockholder Agreement as
of the date first set forth above.
|
XXXXXXX
PROPERTIES, INC.,
|
JMB
Capital Partners Master Fund L.P.,
|
||||||||
|
a
Maryland corporation
|
a
Cayman Island limited partnership
|
||||||||
|
By:
|
/s/
XXXXXX X. RISING
|
By:
|
Smithwood
Partners, LLC,
|
||||||
|
Its:
|
President
& Chief Executive Officer
|
Its:
|
General
Partner
|
||||||
|
By:
|
/s/
XXXXXXXX XXXXXX
|
||||||||
|
Name:
|
Xxxxxxxx
Xxxxxx
|
||||||||
|
Its:
|
Managing
Member
|
||||||||
|
Smithwood
Advisers, L.P.,
|
|||||||||
|
a
California limited partnership
|
|||||||||
|
By:
|
Smithwood
General Partner, LLC
|
||||||||
|
Its:
|
General
Partner
|
||||||||
|
By:
|
/s/
XXXXXXXX XXXXXX
|
||||||||
|
Name:
|
Xxxxxxxx
Xxxxxx
|
||||||||
|
Its:
|
Managing
Member
|
||||||||
|
Smithwood
General Partner, LLC,
|
|||||||||
|
a
California limited liability company
|
|||||||||
|
By:
|
/s/
XXXXXXXX XXXXXX
|
||||||||
|
Name:
|
Xxxxxxxx
Xxxxxx
|
||||||||
|
Its:
|
Managing
Member
|
||||||||
|
Smithwood
Partners, LLC,
|
|||||||||
|
a
California limited liability company
|
|||||||||
|
By:
|
/s/
XXXXXXXX XXXXXX
|
||||||||
|
Name:
|
Xxxxxxxx
Xxxxxx
|
||||||||
|
Its:
|
Managing
Member
|
||||||||
14
