JOINT FILING AND SOLICITATION AGREEMENT
Exhibit
99.1
WHEREAS,
certain of the undersigned are stockholders, direct or beneficial, of Xxxxx’x
Corporation, a Delaware Corporation (the “Company”);
WHEREAS,
Oak Street Capital Master Fund, Ltd. (“Oak Street Master”), Oak Street Capital
Management, LLC (“Oak Street Management”), Xxxxx Xxxxxx, Xxxxxxx Xxxxx, Dash
Acquisitions LLC (“Dash Acquisitions”), Xxxxxxxx Dash, Soundpost Capital, LP,
Soundpost Capital Offshore, Ltd., Soundpost Advisors, LLC, Soundpost Partners,
LP (“Soundpost Partners”), Soundpost Investments, LLC, Xxxxx Xxxxxx, Lyrical
Opportunity Partners II, L.P., Lyrical Opportunity Partners II, Ltd., Lyrical
Opportunity Partners II GP, L.P., Lyrical Corp III, LLC, Lyrical Partners, L.P.
(“Lyrical Partners”), Lyrical Corp I, LLC, Xxxxxxx Xxxxxx and Xxxxxxx X. Arbor,
wish to form a group for the purpose of seeking representation on the Board of
Directors of the Company at the 2010 annual meeting of stockholders of the
Company, or any other meeting of stockholders held in lieu thereof, and any
adjournments, postponements, reschedulings or continuations thereof (the “2010
Annual Meeting”) and for the purpose of taking all other action necessary to
achieve the foregoing.
NOW, IT
IS AGREED, this 1st day
of March 2010 by the parties hereto:
1. In
accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), each of the parties (collectively, the “Group”)
agrees to the joint filing on behalf of each of them of statements on Schedule
13D, and any amendments thereto, with respect to the Securities (as defined
below) of the Company. Each member of the Group shall be responsible
for the accuracy and completeness of his/its own disclosure therein, and is not
responsible for the accuracy and completeness of the information concerning the
other members, unless such member knows or has reason to know that such
information is inaccurate. “Securities” shall mean equity securities
of the Company, options to purchase or sell equity securities of the Company,
and swaps, synthetics and other derivative securities or instruments, the value
of which is solely and directly related to equity securities of the
Company.
2. So
long as this agreement is in effect, (i) none of the parties shall purchase or
sell Securities of the Company or otherwise increase or decrease his/its
economic exposure to Securities of the Company if such party reasonably believes
that, as a result of such action, the Group or any member thereof would be
likely to be required to make any regulatory filing (including, but not limited
to, a Schedule 13D amendment, Form 3 or Form 4 with the Securities and Exchange
Commission) without using his/its reasonable efforts to give Oak Street
Management at least 24 hours prior written notice, and (ii) each of the parties
shall provide written notice to Oak Street Management of (a) any of his/its
purchases or sales of Securities of the Company, and (b) any Securities of the
Company over which he/it acquires or disposes of beneficial ownership, no later
than 24 hours after each such transaction.
3. Each
of the parties agrees to form the Group for the purpose of (i) soliciting
proxies or written consents for the election of the persons nominated by Oak
Street Master to the Board of Directors of the Company at the 2010 Annual
Meeting, (ii) taking such other action as the parties deem advisable, and (iii)
taking all other action necessary or advisable to achieve the foregoing (the
“Solicitation”).
4. Each
of Oak Street Management, Dash Acquisitions, Soundpost Partners and Lyrical
Partners agrees to pay all expenses incurred by the Group in connection with the
Group’s activities, including expenses incurred by any of the parties in the
Solicitation (the “Expenses”), that have been approved by Oak Street Management
and Dash Acquisitions as follows: (i) with respect to the first $293,000 of
Expenses, Oak Street Management shall pay 22.0% of such Expenses, Dash
Acquisitions shall pay 22.0% of such Expenses, Soundpost Partners shall pay
42.7% of such Expenses and Lyrical Partners shall pay 13.3% of such Expenses;
and (ii) with respect to any Expenses in excess of $293,000, Oak Street
Management shall pay 50% of such Expenses and Dash Acquisitions shall pay 50% of
such Expenses. All Expenses that have been paid or approved in
writing by Oak Street Management or Soundpost Partners prior to the date hereof
shall be deemed to be approved by Oak Street Management and Dash Acquisitions
for purposes of this Section 4.
5. Each
of the parties agrees that any SEC filing, press release or stockholder
communication proposed to be made or issued by the Group or any member of the
Group in connection with the Solicitation shall be first approved by Oak Street
Management and Dash Acquisitions, which approval shall be given as promptly as
reasonably practicable and shall not be unreasonably withheld. The
parties also agree that any press release or written communication issued
pursuant to the immediately preceding sentence that refers to Oak Street
Management or its affiliates shall also refer to Dash Acquisitions with equal
prominence. With respect to any SEC filing, each filing shall
separately be made under the name of each of Oak Street Management and Dash
Acquisitions, provided, however, that such filings shall only be made under the
name of Oak Street Management in the event the SEC requests or requires that
such filings be made under one name.
6. Should
any disagreement arise between or among any members of the Group concerning
decisions to be made or actions to be taken in connection with the activities
specified in Section 3 or Section 0, Xxx Xxxxxx Management and Dash Acquisitions
shall have the sole authority to resolve any such disagreement, which resolution
shall be reached as promptly as reasonably practicable and shall not be
unreasonably withheld.
7. The
relationship of the parties hereto shall be limited to carrying on the business
of the Group in accordance with the terms of this agreement. Such
relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing
herein shall be construed to authorize any party to act as an agent for any
other party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party’s right to
purchase or sell Securities of the Company, as he/it deems appropriate, in
his/its sole discretion, provided that all such sales are made in compliance
with all applicable securities laws.
8. This
agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, taken together, shall constitute but one and the same
instrument, which may be sufficiently evidenced by one counterpart.
9. In
the event of any dispute arising out of the provisions of this agreement or
their investment in the Company, the parties hereto consent and submit to the
exclusive jurisdiction of any court of competent jurisdiction of the State of
New York located in New York County and the federal court in the Southern
District of New York.
10. The
parties’ rights and obligations under this agreement (other than the rights and
obligations set forth in Section 4 and Section 9 which shall survive any
termination of this agreement, subject to the final sentence of Section 11)
shall terminate immediately after the conclusion of the Solicitation or as
otherwise agreed to by the parties.
11. The
terms and provisions of this agreement may not be modified, waived or amended
without the written consent of each of the parties
hereto. Notwithstanding anything to the contrary contained herein,
this agreement may be amended, without the written consent of each of the
parties hereto, to (i) add any person or entity as a party hereto, which shall
become effective upon execution of an appropriate joinder agreement signed by
such person or entity and Oak Street Management and Dash Acquisitions, or (ii)
remove any member of the Group as a party hereto, which shall be effective upon
delivery of an appropriate written notice from Oak Street Management to such
member, in the event (a) Oak Street Management determines, in its sole
discretion, that such member has breached his/its obligations under this
agreement or is otherwise not acting in the best interests of the Group, or (b)
any disagreement contemplated under Section 6 cannot be resolved within two
business days. In the event any member of the Group is removed as a
party to this agreement pursuant to the immediately preceding sentence, such
member shall cease to have any rights or obligations under this agreement,
except that such member shall be obligated to pay in accordance with Section 4
its proportional share of the Expenses that have been incurred by the Group
prior to the date of such removal.
12. Each
member of the Group disclaims any beneficial or pecuniary interest in the
Securities of the Company held by the other members of the Group, and each
member intends to make its/his own individual investment and ownership decisions
with respect to the Securities of the Company. There is no
understanding or agreement among any members of the Group to share in any
profits from transactions effected by other Group members.
13. Each
party agrees that Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP shall act
as counsel for both the Group and each of Oak Street Management, Dash
Acquisitions, Soundpost Partners and Lyrical Partners relating to their
respective investments in the Company.
14. Each
party agrees that the Group shall be referred to as “The Committee to Enhance
Denny’s” or such other name as may be determined by Oak Street Management and
Dash Acquisitions and that Xxxxx Xxxxxx, Xxxxxxx Xxxxx and Xxxxxxxx Dash shall
be referred to as the Co-Chairmen thereof.
15. Each
party agrees that this agreement shall be filed as an exhibit to a Schedule 13D
pursuant to Rule 13d-1(k)(1)(iii) under the Exchange Act.
[Signatures
on following page]
IN WITNESS WHEREOF, the parties hereto
have caused this agreement to be executed as of the day and year first above
written.
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OAK
STREET CAPITAL MASTER FUND, LTD.
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By:
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Oak
Street Capital Management, LLC
Investment
Manager
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Managing
Member
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OAK
STREET CAPITAL MANAGEMENT, LLC
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Managing
Member
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/s/
Xxxxx Xxxxxx
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XXXXX
XXXXXX
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/s/
Xxxxxxx Xxxxx
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XXXXXXX
XXXXX
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By:
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/s/
Xxxxxxxx Dash
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Xxxxxxxx
Dash
President
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/s/
Xxxxxxxx Dash
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XXXXXXXX
DASH
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SOUNDPOST
CAPITAL, LP
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By:
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Soundpost
Advisors, LLC
General
Partner
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Managing
Member
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SOUNDPOST
CAPITAL OFFSHORE, LTD.
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By:
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Soundpost
Partners, LP
Investment
Manager
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By:
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Soundpost
Investments, LLC
General
Partner
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Managing
Member
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SOUNDPOST
ADVISORS, LLC
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Managing
Member
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SOUNDPOST
PARTNERS, LP
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By:
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Soundpost
Investments, LLC
General
Partner
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Managing
Member
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SOUNDPOST
INVESTMENTS, LLC
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By:
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/s/
Xxxxx Xxxxxx
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Xxxxx
Xxxxxx
Managing
Member
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/s/
Xxxxx Xxxxxx
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XXXXX
XXXXXX
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LYRICAL
OPPORTUNITY PARTNERS II, L.P.
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By:
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Lyrical
Opportunity Partners II GP, L.P.
General
Partner
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By:
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Lyrical
Corp III, LLC
General
Partner
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
Managing
Member
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LYRICAL
OPPORTUNITY PARTNERS II, LTD.
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By:
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Lyrical
Partners, L.P.
Investment
Manager
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By:
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Lyrical
Corp I, LLC
General
Partner
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
Managing
Member
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LYRICAL
OPPORTUNITY PARTNERS II GP, L.P.
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By:
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Lyrical
Corp III, LLC
General
Partner
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
Managing
Member
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LYRICAL
CORP III, LLC
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
Managing
Member
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LYRICAL
PARTNERS, L.P.
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By:
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Lyrical
Corp I, LLC
General
Partner
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
Managing
Member
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LYRICAL
CORP I, LLC
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By:
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
Managing
Member
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/s/
Xxxxxxx Xxxxxx
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XXXXXXX
XXXXXX
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/s/
Xxxxxxx X. Arbor
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XXXXXXX
X. ARBOR
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