EXHIBIT 11
VOTING AGREEMENT
by and among
CORNELL HOLDING CORP.
and
THE OTHER PARTIES IDENTIFIED
ON THE SIGNATURE PAGES THERETO
dated as of October 6, 2006
VOTING AGREEMENT
This Voting Agreement (this "Agreement") is entered into as of October 6,
2006, among Cornell Holding Corp., a Delaware corporation ("Parent"), and the
other parties identified on the signature pages thereto (each, a "Stockholder").
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Agreement and Plan of Merger dated as of October 6, 2006 (the
"Merger Agreement"), among Cornell Companies, Inc., a Delaware corporation
("Target"), The Veritas Capital Fund III, L.P., a Delaware limited partnership
("Veritas III") (solely for purposes of Section 8.13 thereof), Parent, and CCI
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub").
WITNESSETH:
WHEREAS, as of the date of this Agreement, each Stockholder beneficially
owns (as defined herein) that number of shares of common stock, par value $.001
per share, of Target ("Common Stock") set forth opposite the name of such
Stockholder in the second column of Annex I hereto;
WHEREAS, simultaneously herewith, Target, Veritas III, Parent, and Merger
Sub are entering into the Merger Agreement, pursuant to which Merger Sub will be
merged with and into the Target (the "Merger"), with the Target being the
Surviving Company following the Merger; and
WHEREAS, as a condition to the willingness of Parent and Merger Sub to
enter into the Merger Agreement, and as an inducement and in consideration
therefor, the Stockholders are executing this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. For purposes of this Agreement, the
following terms shall have the following meanings:
(a) "beneficially own" shall have the meaning ascribed to such term
in Rule 13d-3 promulgated under the Exchange Act) (including, but not limited
to, the entitlement to dispose of (or to direct the disposition of) and to vote
(or to direct the voting of)). For purposes of this Agreement, the terms
"beneficially owns" and "beneficially owned" shall have correlative meanings.
(b) "Chosen Courts" shall have the meaning ascribed to such term in
Section 7.9(b) of this Agreement.
(c) "Common Stock" shall have the meaning ascribed to such term in
the recitals to this Agreement.
(d) "Merger" shall have the meaning ascribed to such term in the
recitals to this Agreement.
(e) "Merger Sub" shall have the meaning ascribed to such term in the
caption to this Agreement.
(f) "Merger Agreement" shall have the meaning ascribed to such term
in the caption to this Agreement.
(g) "Parent" shall have the meaning ascribed to such term in the
caption to this Agreement.
(h) "Record Owner" shall have the meaning ascribed to such term in
Section 4.2(a) of this Agreement.
(i) "Representative" means, with respect to any particular Person,
any director, officer, employee, investment banker, attorney or other advisor or
representative of such Person.
(j) "Stockholders" shall have the meaning ascribed to such term in
the caption to this Agreement.
(k) "Subject Shares" means, with respect to any particular Person,
the shares of Common Stock beneficially owned by such Person as of the date of
this Agreement (including, without limitation, any shares of Common Stock set
forth opposite the name of such Person in the second or fourth column of Annex I
hereto), together with any other shares of Common Stock the voting power over
which is directly or indirectly acquired by such Person at any one or more times
prior to the termination of this Agreement pursuant to the terms hereof.
(l) "Target" shall have the meaning ascribed to such term in the
recitals to this Agreement.
(m) "Transfer" shall have the meaning ascribed to such term in
Section 3.1(a) of this Agreement.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
Section 2.1 Agreement to Vote the Subject Shares.
(a) From and after the date hereof, at any meeting of the Target's
stockholders (or any adjournment or postponement thereof), however called, or in
connection with any action by written consent or other action of the Target's
stockholders, each Stockholder shall vote (or cause to be voted) all of the
Stockholder's Subject Shares to the extent that the Subject Shares are not so
voted by Parent (or its designee) pursuant to Section 2.2:
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(i) in favor of the adoption and approval of the terms of the
Merger Agreement, the Merger and the other transactions contemplated by
the Merger Agreement (and any actions required in furtherance thereof);
(ii) against any action, proposal, transaction or agreement
that would directly or indirectly result in a breach of any covenant,
representation, warranty or other obligation or agreement of Target set
forth in the Merger Agreement or of the Stockholder set forth in this
Agreement; and
(iii) except with the prior written consent of Parent, against
the following actions or proposals (other than the transactions
contemplated by the Merger Agreement): (A) any Acquisition Proposal; (B)
any change in the persons who constitute the board of directors of Target;
(C) any material change in the present capitalization of Target or any
amendment of Target's certificate of incorporation or bylaws; (D) any
other material change in Target's corporate structure or business; or (E)
any other action or proposal involving Target or any of its Subsidiaries
that is intended, or would reasonably be expected, to prevent, impede,
interfere with, delay, postpone or adversely affect the transactions
contemplated by the Merger Agreement.
(b) Any such vote shall be cast or consent shall be given in
accordance with such procedures relating thereto so as to ensure that it is duly
counted for purposes of determining that a quorum is present and for purposes of
recording the results of such vote or consent. Each Stockholder agrees not to
enter into any agreement or commitment with any Person the effect of which would
violate or be inconsistent with the provisions and agreements set forth in this
Article II.
Section 2.2 Grant of Proxy. Each Stockholder hereby appoints Parent and
any designee of Parent, and each of them individually, as such Stockholder's
proxy and attorney-in-fact, with fill power of substitution and resubstitution,
to vote or act by written consent with respect the Subject Shares of such
Stockholder in accordance with Section 2.1. The foregoing proxy of each
Stockholder is given by the Stockholder to secure the performance of the duties
of such Stockholder under this Agreement. The Stockholders shall promptly cause
a copy of this Agreement to be deposited with Target at its principal place of
business. Each Stockholder shall take such further action or execute such other
instruments as may be necessary under applicable law to effectuate the intent of
such Stockholder's proxy given pursuant to this Agreement.
Section 2.3 Irrevocability of Proxy. The proxy and power of attorney
granted by each Stockholder pursuant to this Article II shall be irrevocable
during the term of this Agreement, shall be deemed to be coupled with an
interest sufficient in law to support an irrevocable proxy and shall revoke any
and all prior proxies granted with respect to the Stockholder Shares of such
Stockholder. The power of attorney granted by each Stockholder pursuant to this
Agreement is a durable power of attorney and shall survive the dissolution,
bankruptcy or incapacity of the Stockholder. The proxy and power of attorney
granted by each Stockholder pursuant to this Agreement shall terminate upon the
termination of this Agreement.
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ARTICLE III
STANDSTILL; OTHER ACQUISITION PROPOSALS
Section 3.1 Standstill. Each Stockholder hereby agrees that, from and
after the date hereof, the Stockholder and its Affiliates shall not, directly or
indirectly, unless (i) specifically requested by Parent or (ii) expressly
contemplated by the terms of this Agreement or the Merger Agreement:
(a) sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of (collectively, a "Transfer"), or enter into any contract, option or
other agreement with respect to, or consent to, a Transfer of, any or all of the
Subject Shares of the Stockholder or any of its Affiliates;
(b) acquire, offer to acquire, or agree to acquire, directly or
indirectly, by purchase or otherwise, any securities or direct or indirect
rights to acquire Common Stock or any other securities of Target, or any assets
of Target or any Subsidiary or division thereof;
(c) make, or in any way participate in, directly or indirectly, any
"solicitation" of "proxies" (as such terms are used in the rules of the
Securities and Exchange Commission) to vote (including by consent), or seek to
advise or influence any Person with respect to the voting of, any voting
securities of Target (including, without limitation, by making publicly known
the position of such Stockholder or any of its Affiliates on any matter
presented to stockholders of Target), other than to recommend that stockholders
of Target vote in favor of the Merger and the Merger Agreement;
(d) submit to Target any stockholder proposal under Rule 14a-8 under
the Exchange Act;
(e) make any public announcement with respect to, or submit a
proposal for, or offer of (with or without conditions) any extraordinary
transaction involving Target or its securities or assets;
(f) form, join or in any way participate in a "group" (as defined in
Section 13(d)(3) under the Exchange Act) in connection with any of the
foregoing;
(g) seek in any way, directly or indirectly, to have any provision
of this Section 3.1 amended, modified or waived; or
(h) otherwise take, directly or indirectly, any actions with the
purpose or effect of avoiding or circumventing any provision of this Section 3.1
or which could reasonably be expected to have the effect of preventing,
impeding, interfering with or adversely affecting the consummation of the
transactions contemplated by the Merger Agreement or its ability to perform its
obligations under this Agreement.
Section 3.2 Dividends, Distributions, Etc. In the event of a stock
dividend or distribution, or any change in the Common Stock by reason of any
stock dividend or distribution, split-up, recapitalization, combination,
exchange of shares or the like, the term "Subject Shares" shall be deemed to
refer to and include the Subject Shares as well as all such stock dividends and
distributions and any securities into which or for which any or all of the
Subject Shares may be changed or exchanged or which are received in such
transaction.
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Section 3.3 Acquisition Proposals.
(a) Each Stockholder shall not, and each Stockholder shall use its
reasonable best efforts to cause its and its Affiliates' Representatives not to,
(i) solicit, initiate or knowingly encourage the submission of any Acquisition
Proposal or (ii) approve or recommend, or propose to approve or recommend, or
execute or enter into, any letter of intent, agreement in principle, or any
other agreement, arrangement or understanding, relating in any respect to any
Acquisition Proposal, or (iii) participate in any substantive discussions or
negotiations regarding, or furnish to any Person or provide any Person with
access to, any material non-public information with respect to, or knowingly
take any other action to facilitate any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, an Acquisition
Proposal. Each Stockholder shall promptly take the steps necessary to inform its
Representatives (and those of its Affiliates) of the obligations undertaken by
such Stockholder in this Section 3.3 and each Stockholder agrees that it shall
be responsible for any breach of this Section 3.3 by such Representatives as if
such Representatives were parties to this Section 3.3.
(b) In the case of each Stockholder, in addition to the obligations
of such Stockholder set forth in Section 3.3(a), such Stockholder shall promptly
advise Parent of any request made of such Stockholder or any of its Affiliates
for information or the submission or receipt of any Acquisition Proposal, or any
inquiry with respect to or that could lead to any Acquisition Proposal, the
material terms and conditions of such request, Acquisition Proposal or inquiry,
and the identity of the Person making any such request, Acquisition Proposal or
inquiry and the response or responses of such Stockholder and any of its
Affiliates thereto. Each Stockholder shall keep Parent fully informed on a
prompt and current basis as to the status and details (including amendments or
proposed amendments) of any such request, Acquisition Proposal or inquiry. Each
Stockholder shall promptly provide to Parent copies of all written
correspondence or other written material, including material in electronic
written form, between such Stockholder or any of its Affiliates, on the one
hand, and any Person making any such request, Acquisition Proposal or inquiry,
on the other hand. Upon the execution by any Stockholder of this Agreement, such
Stockholder and each of its Affiliates will immediately cease, and such
Stockholder will cause to be terminated any existing activities, discussions or
negotiations with any parties conducted heretofore by such Stockholder or any of
its Affiliates with respect to any of the foregoing, and such Stockholder will
promptly request that all Persons provided confidential information concerning
Target and its Subsidiaries pursuant to a confidentiality agreement with such
Stockholder or any of its Affiliates return to Target all such confidential
information, without keeping copies thereof (if permissible under such
agreement), in accordance with such confidentiality agreement.
(c) Notwithstanding the foregoing, each individual who is both (i) a
Representative of any Stockholder or any Affiliate thereof and (ii) a
Representative of Target shall be entitled to take any action with respect to
any Acquisition Proposal solely in its capacity as a Representative of Target
that it would otherwise be permitted to take in the absence of this Section 3.3.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF EACH STOCKHOLDER
Each Stockholder hereby represents and warrants, severally but not
jointly, to Parent as follows:
Section 4.1 Due Organization, etc. Such Stockholder is duly organized and
validly existing under the laws of the jurisdiction of formation. Such
Stockholder has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby by such Stockholder have been duly authorized by all
necessary action on the part of such Stockholder. This Agreement constitutes a
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as limited by the application
of bankruptcy, moratorium and other laws affecting creditors' rights generally
and as limited by the availability of specific performance and the application
of equitable principles.
Section 4.2 Ownership of Subject Shares.
(a) As of the date of this Agreement, (i) such Stockholder is the
beneficial owner of the aggregate number of shares of Common Stock set forth
opposite the name of such Stockholder in the second column of Annex I hereto and
(ii) each Person set forth opposite the name of such Stockholder in the third
column of Annex I hereto (a "Record Owner") is the record owner of the number of
shares of Common Stock set forth opposite the names of such Record Owner and
such Stockholder in the fourth column of Annex I hereto.
(b) As of the date hereof, each Record Owner with respect to such
Stockholder (i) has the sole power to vote the shares of Common Stock set forth
opposite the names of such Record Owner and such Stockholder in the fourth
column of Annex I hereto (and such shares, to the extent not represented by a
global certificate issued in the name of Cede & Co., are represented by the
stock certificate bearing the certificate number set forth opposite such names
in the fifth column of Annex I), (ii) has the sole power to cause to be voted
such shares (or, if such Record Owner is not such Stockholder, such Record
Owner, together with such Stockholder and any other Stockholders the names of
which are set forth opposite such shares on Annex I, have the shared power to
cause such shares to be voted), and (iii) has good and valid title to such
shares of Common Stock, free and clear of any and all pledges, mortgages, liens,
charges, proxies, voting agreements, encumbrances, adverse claims, options,
security interests and demands of any nature or kind whatsoever, other than
those created by this Agreement.
Section 4.3 No Conflicts. (i) No filing with any Governmental Authority
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by such Stockholder or the consummation by such
Stockholder of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by such Stockholder, the consummation
by such Stockholder of the transactions contemplated hereby or compliance by
such Stockholder with any of the provisions hereof shall (A) conflict with or
result in any breach of the organizational documents of such Stockholder, (B)
result in, or give rise to, a violation or breach of or a default under any of
the terms of any material contract, understanding, agreement or other instrument
or obligation to which such Stockholder is a party or by which such Stockholder
or any of its assets may be bound or by which any of the Subject Shares of such
Stockholder or any of its Affiliates may be bound, (C) result in the creation
of, or impose any obligation on such Stockholder or any of its Affiliates to
create, any Lien upon the Subject Shares of such Stockholder or any of its
Affiliates, or (D) violate any applicable law, except for any of the foregoing
as does not and could not reasonably be expected to impair such Stockholder's
ability to perform its obligations under this Agreement.
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Section 4.4 Total Shares. The shares of Common Stock set forth opposite
the name of such Stockholder in the second and fourth columns of Annex I hereto
are the only shares of any class or series of capital stock of Target or any
Subsidiary thereof of which such Stockholder is the record or beneficial owner
or which such Stockholder has the right, power or authority (sole or shared) to
sell or vote, and such Stockholder does not have any right to acquire, nor is it
the beneficial owner of, any other shares of any class or series of capital
stock of Target or any Subsidiary thereof or any securities convertible into, or
exchangeable or exercisable for, any shares of any class or series of capital
stock of Target or any Subsidiary thereof.
Section 4.5 Reliance by Parent. Such Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
the execution and delivery of this Agreement by such Stockholder.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
OF PARENT
Parent hereby represents and warrants to the Stockholders as follows:
Section 5.1 Due Organization, etc. Parent is a corporation duly organized
and validly existing under the laws of the State of Delaware. Parent has all
necessary corporate power and authority to execute and deliver this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby by Parent have been duly authorized by all necessary corporate action on
the part of Parent.
Section 5.2 Conflicts. (i) No filing with any Governmental Authority, and
no authorization, consent or approval of any other Person is necessary for the
execution of this Agreement by Parent and the consummation by Parent of the
transactions contemplated hereby and (ii) neither the execution and delivery of
this Agreement by Parent nor the consummation by Parent of the transactions
contemplated hereby shall (A) conflict with or result in any breach of the
organizational documents of Parent, (B) result in, or give rise to, a violation
or breach of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which Parent is a
party or by which Parent or any of its assets may be bound, or (C) violate any
applicable law, except for any of the foregoing as does not and could not
reasonably be expected to impair Parent's ability to perform its obligations
under this Agreement.
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ARTICLE VI
TERMINATION
Section 6.1 Termination.
(a) Subject to Section 6.1(b), this Agreement shall terminate and
none of Parent or any Stockholder shall have any rights or obligations hereunder
upon the earliest to occur of: (i) the termination of this Agreement by mutual
written consent of Parent and the Stockholders, (ii) the Effective Time, and
(iii) the termination of the Merger Agreement in accordance with its terms.
(b) Notwithstanding the foregoing, (i) the termination of this
Agreement shall not prevent any party hereunder from seeking any remedies
(whether at law or in equity) against any other party hereto for such party's
breach of any of the terms of this Agreement, and (ii) Article VII (other than
Section 7.2) of this Agreement shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Appraisal Rights. To the extent permitted by applicable law,
each Stockholder hereby waives any rights of appraisal or rights to dissent from
the Merger that it may have under applicable law.
Section 7.2 Publication. Each Stockholder hereby permits Target to publish
and disclose in the Proxy Statement (including all documents and schedules filed
with the SEC) its identity and ownership of shares of Common Stock and the
nature of its commitments, arrangements and understandings pursuant to this
Agreement; provided, however, that such publication and disclosure shall be
subject to the prior review and comment by such Stockholder.
Section 7.3 Further Actions. Each of the parties hereto agrees that it
will use its reasonable best efforts to do all things necessary to effectuate
the intent and provisions of this Agreement.
Section 7.4 Notices. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given (i) if personally
delivered, on the date of delivery, (ii) if delivered by express courier service
of national standing (with charges prepaid), on the Business Day following the
date of delivery to such courier service, (iii) if deposited in the United
States mail, first-class postage prepaid, on the fifth Business Day following
the date of such deposit, or (iv) if delivered by telecopy, upon confirmation of
successful transmission, (x) on the date of such transmission, if such
transmission is completed at or prior to 5:00 p.m., local time of the recipient
party, on the date of such transmission, and (y) on the next Business Day
following the date of transmission, if such transmission is completed after 5:00
p.m., local time of the recipient party, on the date of such transmission.
Notices, demands and communications to any party hereto shall, unless another
address or facsimile number is specified in writing pursuant to the provisions
hereof, be sent to the address or facsimile number indicated below:
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If to Parent to:
Cornell Holding Corp.
x/x Xxxxxxx Xxxxxxx Xxxx Xxxxxxxxxx, X.X.X.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to any Stockholder, to the address or facsimile number set forth
opposite the name of such Stockholder on Annex II hereto.
Section 7.5 Assignment; Binding Effect. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned, in whole or in
part, by operation of law or otherwise, by any of the parties hereto without the
prior written consent of the other parties, except that Parent may assign all or
any of its rights and obligations hereunder to any Affiliate or financing source
of Parent or Merger Sub; provided, that no such assignment shall relieve the
assigning party of its obligations hereunder if such assignee does not perform
such obligations. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties hereto
and their respective successors and permitted assigns. Any purported assignment
not permitted under this Section shall be null and void.
Section 7.6 Third Party Beneficiaries. Notwithstanding anything contained
in this Agreement to the contrary, except for Section 7.2 (solely in the case of
Target as the intended beneficiary thereof), nothing in this Agreement,
expressed or implied, is intended to or shall confer on any Person, other than
the parties hereto or their respective permitted successors and assigns, any
rights, benefits, remedies, obligations or liabilities whatsoever under or by
reason of this Agreement.
Section 7.7 Amendments. This Agreement may not be modified, amended,
altered or supplemented with respect to any Stockholder, except upon the
execution and delivery of a written agreement executed by Parent and such
Stockholder. This Agreement may not be modified, amended, altered or
supplemented with respect to Parent, except upon the execution and delivery of a
written agreement executed by Parent.
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Section 7.8 Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties, or any of them, with respect thereto.
Section 7.9 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) All disputes, claims or controversies arising out of or relating
to this Agreement, or the negotiation, validity or performance of this
Agreement, or the transactions contemplated hereby shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws.
(b) Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the sole and exclusive jurisdiction of the
courts of the State of Delaware and of the United States District Court for the
District of Delaware and any court of appeal therefrom (the "Chosen Courts") for
any litigation arising out of or relating to this Agreement, or the negotiation,
validity or performance of this Agreement, or the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such litigation
in the Chosen Courts and agrees not to plead or claim in any Chosen Court that
such litigation brought therein has been brought in any inconvenient forum. Each
of the parties hereto agrees that service of process may be made on such party
by prepaid certified mail with a proof of mailing receipt validated by the
United States Postal Service constituting evidence of valid service. Service
made pursuant to the foregoing sentence shall have the same legal force and
effect as if served upon such party personally within the State of Delaware.
(c) Each of the parties hereto irrevocably waive any and all rights
to trial by jury in any proceedings arising out of or related to this Agreement
or the transactions contemplated hereby.
Section 7.10 Fee and Expenses. Except as otherwise provided herein,
whether or not the Merger is consummated, all costs and expenses incurred by a
party hereto in connection with this Agreement and the transactions contemplated
hereby shall be paid and borne by such party.
Section 7.11 Headings. Headings of the articles and sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
Section 7.12 Interpretation. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, words denoting any gender shall include all genders and
words denoting natural Persons shall include corporations and partnerships and
vice versa. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be understood to be followed by the words "without
limitation."
Section 7.13 Waivers. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
nor any failure or delay on the part of any party hereto in the exercise of any
right hereunder, shall be deemed to constitute a waiver by the party taking such
action of compliance of any representations, warranties, covenants or agreements
contained in this Agreement. The waiver by any party hereto of a breach of any
provision hereunder shall not operate or be construed as a waiver of any prior
or subsequent breach of the same or any other provision hereunder.
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Section 7.14 Severability. Any term or provision of this Agreement that is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
Section 7.15 Enforcement of this Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in the Chosen Courts, this
being in addition to any other remedy to which they are entitled at law or in
equity.
Section 7.16 Counterparts. This Agreement may be executed by the parties
hereto in two or more separate counterparts, each of which, when so executed and
delivered, shall be deemed to be an original. All such counterparts shall
together constitute one and the same instrument. Each counterpart may consist of
a number of copies hereof, each signed by less than all, but together signed by
all, of the parties hereto.
* * *
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be duly executed as of the day and year first above written.
CORNELL HOLDING CORP.
By: /s/ Xxxxxx X. XxXxxx
------------------------
Xxxxxx X. XxXxxx
Authorized Signatory
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be duly executed as of the day and year first above written.
XXXXXX XXXXXXX LLC
By: /s/ Xxxxxx X. Xxxxxx Xx.
------------------------
Xxxxxx X. Xxxxxx Xx.
Managing Member
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be duly executed as of the day and year first above written.
XXXXX XXXXX FUND LP
By: Xxxxxx Xxxxxxx LLC,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxx Xx.
------------------------
Xxxxxx X. Xxxxxx Xx.
Managing Member
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be duly executed as of the day and year first above written.
XXXXX XXXXX OFFSHORE FUND LTD
By: Xxxxxx Xxxxxxx LLC,
Its Investment Manager
By: /s/ Xxxxxx X. Xxxxxx Xx.
------------------------
Xxxxxx X. Xxxxxx Xx.
Managing Member
Annex I
Subject Shares
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Subject Shares Number of Shares Held
Stockholder Beneficially Owned Holder of Record of Record Certificate Number
(1) (2) (3) (4) (5)
--- --- --- --- ---
------------------------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx LLC 2,321,100* Cede & Co. 0 N/A
------------------------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxx Fund LP 606,400 Cede & Co.** 100 N/A
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Xxxxx Xxxxx Offshore Fund LTD 1,714,700 Cede & Co. 0 N/A
------------------------------------------------------------------------------------------------------------------------------------
* Held indirectly through Xxxxx Xxxxx Fund LP and Xxxxx Xxxxx Offshore Fund LTD.
** 100 shares are held of record by Xxxxx Xxxxx Fund LP.
Annex II
Notices
Xxxxxx Xxxxxxx LLC
Xxxxx Xxxxx Fund LP
Xxxxx Xxxxx Offshore Fund LTD
c/o Xxxxxx Xxxxxxx LLC
000 Xxxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
