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EXHIBIT 10.38
RECAPITALIZATION AGREEMENT
THIS RECAPITALIZATION AGREEMENT ("Agreement") is made and entered into
this 25th day of June 2001 by and among Xxxxxxx International, Ltd., a
Delaware Corporation with its principal place of business located at Xxx
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxx 00000 (the "Company"); June X. Xxxxxx,
Xxxx X. Xxxxxxx, Xx. and The United States Trust Company of New York, as
Co-Executors of the Estate of Xxxxxx X. Xxxxxx, late of New York, New York
(the "Estate"); Xxxxxxx Partners, LLC, a Delaware limited liability company
("Xxxxxxx Partners"); Park Investment Partners, Inc., a Delaware corporation
("Park"); and Xxxxxx X. Xxxxxx ("Xxxxxx").
RECITALS:
A. On October 2, 1998, the Company effectuated a recapitalization
transaction (the "1998 Recapitalization Transaction") pursuant to the terms and
conditions set forth in an Agreement, dated as of such date (the "1998
Recapitalization Agreement"), by and among the Company, BankBoston, N.A, the
Estate, and Xxxxxxx Partners.
B. In connection with the 1998 Recapitalization Transaction, the Company
borrowed $4 million from Xxxxxxx Partners pursuant to a Loan and Security
Agreement, dated such date (the "Loan and Security Agreement"), entered into by
and between the Company and Xxxxxxx Partners. The indebtedness incurred under
the Loan and Security Agreement is evidenced by a Term Note, originally dated as
of October 2, 1998 (the "Xxxxxxx Partners Term Note"), in the original principal
amount of $4 million.
C. In order to induce Xxxxxxx Partners to enter into the 1998
Recapitalization Agreement and participate in the 1998 Recapitalization
Transaction, the Company and Xxxxxxx Partners also entered into a Warrant
Agreement, dated as of October 2, 1998 (the "Warrant Agreement"), pursuant to
which the Company issued warrants (the "Warrants") to purchase up to thirty-five
percent (35%) of the pro forma, fully diluted number of shares (the "Warrant
Shares") of the common stock, par value $.001 per share ("Common Stock"), of the
Company at an exercise price of $1.50 per share at any time on or before October
1, 2003 (the "Warrant Expiration Date").
D. The Company and Xxxxxxx Partners also entered into a Registration
Rights Agreement, dated as of October 2, 1998 (the "Registration Rights
Agreement"), pursuant to which the Company agreed to register the Warrant Shares
under the Securities Act of 1933, as amended (the "Securities Act"). In
addition, the Company, Xxxxxxx Partners, the Estate, Park, Newman, Xxxxxx
Xxxxxxx ("Spiegel") and Four Partners, a New York general partnership entered
into a Voting Agreement, dated as of October 2, 1998 (the "Voting Agreement"),
pursuant to which the parties each agreed to vote all shares of the Company's
Common Stock held by them in favor of persons nominated as directors of the
Company by Xxxxxxx Partners, the Estate and Park.
E. In connection with the 1998 Recapitalization Transaction, the Company
executed and issued to the Estate a Promissory Note, dated as of October 2, 1998
(the "Estate Note"), in
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the original principal amount of $1,701,168.75. The Company already owed the
Estate $150,000.00, pursuant to the terms of a borrowing (the "Geneen Note")
effectuated by Xx. Xxxxxx X. Xxxxxx prior to his death. The Estate Note and the
Geneen Note are sometimes hereinafter collectively referred to as the "Estate
Notes."
F. On November 17, 1998, Xxxxxxx Partners distributed the Warrants to its
members on a pro-rata basis, and each such member agreed to be bound by the
Warrant Agreement, the Voting Agreement and the Registration Rights Agreement.
The members of Xxxxxxx Partners are (i) Four Partners, New York general
partnership, (ii) Spiegel, (iii) the Xxxxxxx Xxxxxxx 1987 Trust, and (iv) Xxxxxx
X. Xxxxxxxxx. Subsequently, on November 24, 1998, Four Partners distributed its
Warrants to Four-Fourteen Partners, LLC, a Delaware limited liability company.
G. On April 4, 2000, the Company borrowed an additional $500,000 from
Xxxxxxx Partners under and pursuant to a promissory note, dated as of such date
(the "Xxxxxxx Partners Demand Note"), which indebtedness was originally due and
payable on demand on or after April 1, 2001.
H. On November 30, 2000, the Company borrowed an additional $500,000 from
Spiegel under and pursuant to a promissory note, dated as of such date (the
"Spiegel Note"), which principal indebtedness is due and payable on November 30,
2001.
I. The Estate is the beneficial owner of 919,568.5 shares of Common Stock
of the Company (the "Estate Shares"), 225,824 of which are owned of record by
the Estate (the "Estate's Record Shares") and 693,744.5 of which are owned of
record by Park (the "Estate's Beneficial Shares"). The issued and outstanding
common stock of Park is 50% owned by the Estate and 50% owned by Xxxxxx.
J. The Estate has offered to sell the Estate Notes and the Estate Shares
to the Company for an aggregate purchase price of $637,935, provided that the
closing for such transaction occurs as soon as practicable, but no later than
the date which is thirty (30) days following the date of this Agreement.
K. The Company desires to repurchase from the Estate the Estate Notes and
the Estate Shares and to pay in full the principal and accrued interest
outstanding under the Xxxxxxx Partners Term Note, the Xxxxxxx Partners Demand
Note and the Spiegel Note (such transactions being sometimes hereinafter
collectively referred to as the "Debt Transactions").
L. In order to generate the funds necessary to effectuate the Debt
Transactions, the Company intends to engage in a rights offering registered
under the Securities Act (the "Rights Offering"), pursuant to which the Company
will offer and sell to its stockholders up to 16,000,000 shares of its Common
Stock at a purchase price of $.50 per share (the "Subscription Price").
M. The Debt Transactions and the Rights Offering are sometimes
hereinafter collectively referred to as the "Recapitalization Transactions."
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N. In order to enable the Company to effectuate the repurchase of the
Estate Shares and the Estate Notes within the time-frame specified by the
Estate, Xxxxxxx Partners is willing to purchase from the Estate for the benefit
of the Company the Estate Shares and the Estate Notes and then, after the
consummation of the Rights Offering, to resell, at cost, the Estate Shares and
the Estate Notes to the Company.
O. The parties hereto desire to enter into this Agreement evidencing their
commitment to effectuate the Recapitalization Transactions, all on the terms and
subject to the conditions hereinafter set forth.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
each to the other paid, the receipt and sufficiency of which are hereby
acknowledged, do hereby agree as follows:
1. Rights Offering; Registration Statement; Use of Proceeds.
(a) Offering. The Company shall use its reasonable best efforts to
effectuate a registered public offering of up to 16,000,000 million shares of
its Common Stock (the "Offered Shares") to its existing stockholders by
subscription right on a pro-rata basis. The rights to subscribe to the Offered
Shares shall be granted at a ratio (e.g. 3.728-for-1) to be determined by the
Board of Directors of the Company in its sole discretion (the "Basic
Subscription Right"). In addition, the Company's stockholders shall be granted
the right to "oversubscribe" for additional shares not purchased by other
stockholders, up to the total amount of the Offered Shares (the
"Oversubscription Right"). The number of shares available for purchase by means
of the Oversubscription Rights shall be the total number of Offered Shares minus
the number of shares purchased upon exercise of all stockholders' Basic
Subscription Rights. If sufficient shares are available, the Company will honor
the stockholders' oversubscription requests in full. If the oversubscription
requests exceed the number of shares available, then the Company shall allocate
the available shares among the oversubscribing stockholders, other than Xxxxxxx
Partners, in proportion to the number of shares purchased by each such
stockholder through the exercise of his Basic Subscription Rights.
(b) Purchase Commitment of Xxxxxxx Partners. In the event that the
Company's stockholders other than Xxxxxxx Partners do not subscribe for and
purchase all 16,000,000 of the Offered Shares through the exercise of their
Basic Subscription Rights and their Oversubscription Rights, Xxxxxxx Partners
shall subscribe for and purchase from the Company in the Rights Offering through
the exercise of its Basic Subscription Rights and/or its Oversubscription Rights
a number of shares equal to 16,000,000 less the number of shares subscribed for
and purchased by stockholders other than Xxxxxxx Partners, up to a maximum of
14,000,000 shares.
(c) Preparation of Registration Statement. The Company shall prepare
and file, and use its reasonable best efforts to have declared effective, a
registration statement on Form S-3 (or any such other Form as may be available
for use by the Company) (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Act and the
rules and regulations promulgated thereunder for the
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purpose of registering for sale under the Securities Act the Offered Shares. The
Company shall consult with Xxxxxxx Partners, the Estate, Park, Xxxxxx and
Spiegel (and their respective legal and financial advisers, as the case may be)
regarding the preparation of the Registration Statement. The Company shall use
its reasonable best efforts to complete the Rights Offering no later than
September 30, 2001.
(d) Application of Net Proceeds. The net proceeds of the Rights
Offering (estimated to range from $7 to $8 million before expenses) shall be
utilized to fund the payment in full of the Xxxxxxx Partners Term Note, the
Xxxxxxx Partners Demand Note and the Spiegel Note and the purchase of the Estate
Notes and the Estate Shares. The balance of funds raised in the Rights Offering
in excess of the amounts required to consummate the Debt Transactions as
described in the preceding sentence shall be utilized by the Company for its
general working capital purposes, the specific determination of which shall be
in the sole and absolute discretion of the Board of Directors and management of
the Company.
(e) Effect on Xxxxxxx Partners Warrant Agreement. The parties to the
Warrant Agreement and the holders of the Warrants hereby acknowledge and agree
that, pursuant to Section 3.01(a) of the Warrant Agreement, the issuance and
sale by the Company of the Offered Shares shall have no effect on the number of
shares of the Company's Common Stock into which the Warrants are exercisable
(because the Rights Offering is a bona fide public offering registered under the
applicable provisions of the Securities Act of 1933, as amended). The parties
further agree that, pursuant to the terms of the Spiegel Note, the Warrant
Expiration Date shall be extended for one calendar day for each calendar day
from and after April 1, 2001 until the repayment in full by the Company of all
principal and interest due under the Spiegel Note.
2. Repurchase of the Estate Shares and the Estate Notes by the
Company.
(a) General. The Estate hereby agrees to sell to the Company, and,
subject to applicable law and the terms and provisions of this Agreement, the
Company hereby agrees to purchase from the Estate, the Estate Shares for an
aggregate purchase price of one hundred thirty-seven thousand nine hundred
thirty-five dollars ($137,935.00) (or $.15 per share) and the Estate Notes for
an aggregate purchase price of five hundred thousand dollars ($500,000.00). The
aggregate, combined purchase price of the Estate Shares and the Estate Notes is
sometimes hereinafter referred to as the "Aggregate Repurchase Price."
(b) Financial Condition of the Company; Financial Assistance from
Xxxxxxx Partners. Prior to the consummation of the Rights Offering and the
receipt of the net proceeds generated thereby, the Company will not be in a
financial position legally to effectuate the repurchase of the Estate Shares and
the Estate Notes (the "Repurchase Transactions"). To facilitate the consummation
of the Repurchase Transactions prior to the consummation of the Rights Offering,
Xxxxxxx Partners hereby agrees to effectuate the Repurchase Transactions itself
for the benefit of the Company, on the terms and conditions set forth in this
Section 2, and the Estate hereby agrees to sell the Estate Shares and the Estate
Notes to Xxxxxxx Partners for the benefit of the Company.
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(c) The Repurchase Closing. The closing of the Repurchase
Transactions (the "Repurchase Closing") shall be held at the principal executive
offices of Xxxxxxx Partners (or any other mutually convenient place) at such
time and on such date as may be mutually determined by Xxxxxxx Partners and the
Estate (the "Repurchase Closing Date"), provided, however, that, unless
otherwise agreed between Xxxxxxx Partners and the Estate, the Repurchase Closing
shall be held on a date which is no more than thirty (30) days after the date of
this Agreement. Upon consummation of the sale of the Estate Shares and the
Estate Notes by the Estate to Xxxxxxx Partners at the Repurchase Closing, the
Estate shall be deemed to have fulfilled its obligations under this Agreement
(except for the obligations of the Estate under Section 13 hereof).
(d) Closing Deliveries. At the Repurchase Closing, the Estate shall
deliver to Xxxxxxx Partners the certificate or certificates representing the
Estate Shares, duly endorsed or accompanied by stock powers executed in blank,
and the Estate Notes (assigned to the order of Xxxxxxx Partners), both in form
and substance satisfactory to Xxxxxxx Partners, together with any and all other
documents reasonably requested by Xxxxxxx Partners to document the purchase and
sale of the Estate Shares and the Estate Notes. The Estate shall also represent
to Xxxxxxx Partners that the Estate Shares and the Estate Notes are being
transferred free and clear of all liens and encumbrances created by the Estate.
In exchange, Xxxxxxx Partners shall pay to the Estate the Aggregate Repurchase
Price in immediately available funds by wire transfer or previously cleared
check, unless other means of payment shall have been agreed upon by the Estate
and Xxxxxxx Partners.
(e) Distribution by Park. In order to facilitate the Repurchase
Transactions, Park shall take whatever actions are necessary to distribute the
Estate's Beneficial Shares to the Estate as soon as practicable, but in any
event no later than five (5) business days prior to the Repurchase Closing Date.
(f) Resale by Xxxxxxx Partners to the Company. Following the
consummation of the Rights Offering, Xxxxxxx Partners shall sell to the Company,
and the Company shall purchase from Xxxxxxx Partners, the Estate Shares for a
total purchase price of one hundred thirty-seven thousand nine hundred
thirty-five dollars ($137,935.00) (or $.15 per share) and the Estate Notes for a
total purchase price of five hundred thousand dollars ($500,000.00).
(g) The GP Closing. The closing of the purchase transactions
contemplated by the preceding paragraph (the "GP Closing") shall consist of
Xxxxxxx Partners' sale and the Company's purchase of the Estate Shares and the
Estate Notes on the same terms and conditions as the repurchase by Xxxxxxx
Partners. The GP Closing shall be held at the principal offices of the Company
(or any other mutually convenient place) at such time and date selected by
Xxxxxxx Partners and the Company, provided that the GP Closing shall occur no
later than thirty (30) days following the completion of the Rights Offering.
(h) GP Closing Deliverables. At the GP Closing, Xxxxxxx Partners
shall deliver to the Company the certificates representing the Estate Shares
duly endorsed or accompanied by stock powers executed in blank and the Estate
Notes (assigned to the order of
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the Company), both in form and substance satisfactory to the Company, together
with all other documents reasonably requested by the Company to document the
purchase and sale of the Estate Shares and the Estate Note. Xxxxxxx Partners
shall also represent that the Estate Shares and the Estate Note are being
transferred free and clear of all liens and encumbrances created by Xxxxxxx
Partners. At the GP Closing, the Company shall pay the purchase price in
immediately available funds by wire transfer or previously cleared check, unless
other means of payment shall have been agreed upon by the Company and Xxxxxxx
Partners.
3. Forbearance Under Xxxxxxx Partners Demand Note. Xxxxxxx Partners
hereby ratifies and confirms its agreement, effective as of March 31, 2001, to
forebear on the demand of repayment of principal and interest under the Xxxxxxx
Demand Note until the date which is the earlier of (a) the date which is thirty
(30) days following the expiration of the Rights Offering or (b) December 31,
2001.
4. Amendment to the Company's Restated Certificate of Incorporation.
(a) As of the date hereof, the Company has (i) an authorized class
of Common Stock of 16,000,000 shares and (ii) 4,291,769 shares of Common Stock
issued and outstanding and 3,044,285 shares reserved for issuance under the
Company's outstanding stock options and warrant agreements.
(b) The Company's planned sale of the Offered Shares requires that
the Restated Certificate of Incorporation of the Company (the "Certificate of
Incorporation") be amended to increase the number of authorized shares of Common
Stock of the Company.
(c) The Company shall prepare, and submit to the stockholders of the
Company for their approval in accordance with Delaware law an amendment to the
Company's Certificate of Incorporation increasing the number of authorized
shares of Common Stock by sixteen (16) million shares, to a total of thirty-two
(32) million shares of Common Stock.
5. Registration Rights Agreement. In order to facilitate the Rights
Offering, Xxxxxxx Partners hereby waives its right to receive any required
notices and the right to exercise its "piggyback registration" rights to cause
the Company to include the Warrant Shares in the Registration Statement to be
filed in connection with the Rights Offering, as set forth in Section 4(a) of
the Registration Rights Agreement.
6. Voting Agreement. Upon the completion of the Repurchase described in
Section 2 of this Agreement, the completion of the Rights Offering, and the
retirement of the Company's outstanding debt obligations referred to in Section
1(d) of this Agreement, the Voting Agreement shall terminate and be of no
further legal force or effect, as provided in Section 3.3 of the Voting
Agreement.
7. Termination.
(a) General. This Agreement may be terminated, and the
Recapitalization Transactions contemplated hereby may be abandoned (to the
extent that any particular
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transactions have not already been consummated) at any time prior to the time
such Recapitalization Transactions are consummated:
(i) by the unanimous written consent of the parties to
this Agreement; or
(ii) by the Company, if the Rights Offering shall not have
been consummated on or before December 31, 2001.
(b) Effect of Termination. In the event of any termination of this
Agreement pursuant to the provisions of paragraph (a) above, the parties shall
have no further obligation or liability to each other with respect to the
subject matter hereof; provided, however, that no termination pursuant to
paragraph (a) above shall (i) relieve any party from liability for any breach of
any covenant or agreement of such party contained in this Agreement; (ii) affect
or impair any rights the parties may have under, or by virtue of, any other
documents and agreements among the parties; or (iii) unless otherwise set forth
in a written termination document signed by Xxxxxxx Partners and the Company,
relieve Xxxxxxx Partners of its obligation to resell the Estate Shares and the
Estate Notes to the Company on the terms and conditions set forth in Section 2
above as soon as the Company is financially able, and legally authorized, to
effectuate such repurchase transactions.
8. Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand, (b) sent by facsimile, provided that a copy is
mailed by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and facsimile
numbers set forth below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to the Company: Xxxxxxx International, Ltd.
Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx, CEO
Facsimile No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx, LLP
CityPlace I, 000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxx, Xx.
Facsimile: (000) 000-0000
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If to the Estate: Co-Executors of the Estate of Xxxxxx X. Xxxxxx
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to: Cameron & Xxxxxxxxxx LLP
000 Xxxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
If to Xxxxxxx Partners: Xxxxxxx Partners, LLC
c/o Xxxxxx X. Xxxxxxxxx, President
Tisch Family Interests
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to: Rice & Ravitch LLP
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
If to Spiegel: Xxxxxx Xxxxxxx
00 Xxxxxx Xxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
with a copy to: Rice & Ravitch LLP
000 Xxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
If to Park: Park Investment Partners, Inc.
00000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
If to Xxxxxx: Xxxxxx X. Xxxxxx
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00000 Xxxxx Xxxx Xxx
Xxxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
8. Modification. This Agreement may not be amended, changed or
terminated orally, and no attempted amendment, change, termination or waiver of
any of the provisions hereof shall be binding unless in writing and signed by
each of the parties to be charged thereby. Without limiting the generality of
the foregoing, the other parties to this Agreement acknowledge and agree that
the Company and Xxxxxxx Partners, acting alone without the consent or
concurrence of any other party to this Agreement, may amend, change, terminate
or waive any of the provisions hereof pertaining to (a) the Rights Offering (and
the participation in the Rights Offering of Xxxxxxx Partners), (b) the Company's
repurchase of the Estate Shares and the Estate Notes from Xxxxxxx Partners, (c)
the payment of, and forbearance under, the Xxxxxxx Partners Term Note, the
Xxxxxxx Partners Demand Note, the Spiegel Note and the Estate Notes (from and
after the time the Estate Notes are purchased by Xxxxxxx Partners for the
benefit of the Company), and (d) the amendments to the Certificate of
Incorporation contemplated by Section 4 hereof.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Connecticut, without regard to
the conflict of laws provisions thereof.
10. Severability. The provisions of this Agreement are independent of
and severable from each other. If any provision hereof shall for any reason be
held invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity or enforceability of any other provision hereof, and this
Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Execution by Telefacsimile Transmission. Telefacsimile transmissions
of any executed original document and/or retransmission of any executed
telefacsimile transmission shall be deemed to be the same as the delivery of an
executed original. At the request of any party hereto, the other parties shall
confirm telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting party or parties.
13. Further Assurances. Each of the parties hereto shall execute such
additional documents and perform such further acts (including, without
limitation, obtaining any consents, exemptions, authorizations, or other actions
by, or giving any notices to, or making any filings with, any governmental
authority or any other person) as may be reasonably required or desirable to
carry out or to perform the provisions of this Agreement.
[Rest of This Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties have hereunto set their hands and executed
this Agreement as of the day and year first above written.
XXXXXXX INTERNATIONAL, LTD.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: President & CEO
ESTATE OF XXXXXX X. XXXXXX
By: /s/ June X. Xxxxxx
-------------------------------------
June X. Xxxxxx, Co-Executor
By: /s/ Xxxx X. Xxxxxxx, Xx.
-------------------------------------
Xxxx X. Xxxxxxx, Xx., Co-Executor
By: UNITED STATES TRUST COMPANY
OF NEW YORK, Co-Executor
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President
XXXXXXX PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
PARK INVESTMENT PARTNERS, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
XXXXXX X. XXXXXX
ACKNOWLEDGEMENT
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The undersigned, to the extent that they are (i) members of Xxxxxxx
Partners, LLC, (ii) parties to the Warrant Agreement, the Registration Rights
Agreement and the Voting Agreement, and (iii) holders of Warrants, hereby
acknowledge the covenants and agreements set forth in Sections 1(e), 5 and 6 of
this Agreement and hereby agree to be bound by same.
FOUR PARTNERS
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Partner
/s/ Xxxxxx Xxxxxxx
---------------------------
XXXXXX XXXXXXX
XXXXXXX XXXXXXX 1987 TRUST
By: /s/ Xxxxxx Xxxxxxx, Trustee
---------------------------
Name:
Title:
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------
XXXXXX X. XXXXXXXXX
FOUR-FOURTEEN PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxx
---------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
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