Exhibit 99.11
Xxxxxxxx.xxx, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
September 13, 2005
Xx. Xxxxx X. Xxxxxxxxxxx
Xxxxxxxxx Companies Equity Partners, L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx XX 00000
Gentlemen:
This memorializes our mutual agreement as to the matters below, in
connection with (a) the letter from Barington Companies Equity Partners, L.P.
("Barington") dated June 30, 2005 (the "Stockholder Nomination") providing
notice to Xxxxxxxx.xxx, Inc. (the "Company") of Xxxxxxxxx'x intention to
nominate certain individuals for election as directors of the Company at its
2005 Annual Meeting of Stockholders (the "2005 Meeting"), and (b) the
preliminary proxy material subsequently filed by Barington with the Securities
and Exchange Commission with respect to the 2005 Meeting (the "Preliminary Proxy
Material").
1. Barington hereby withdraws the Stockholder Nomination, and will promptly
withdraw the Preliminary Proxy Material, and the counter-parties to this
letter agreement and their respective affiliates and associates (as such
terms are defined in Rule 12b-2 promulgated by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended) shall
immediately cease all efforts in furtherance of the Stockholder Nomination
and any related solicitation and shall not vote, deliver or otherwise use
any proxies heretofore obtained in connection with the Stockholder
Nomination. At any time prior to the Expiration Date (as defined below),
neither the counter-parties to this letter agreement nor any of their
respective affiliates and associates (the "Bound Parties" shall (X) solicit
proxies or engage in a proxy contest with respect to the election of
directors or any proposal to be considered at a meeting of Company
stockholders called for the purpose of electing directors to the Company's
Board of Directors (any such meeting, an "Election Meeting") or present any
proposal for consideration at such meeting (provided, however, that the
Bound Parties shall not be prohibited from soliciting proxies in opposition
to any proposals presented by the Company or any third party at the
Election Meeting that do not relate to the election of directors), (Y)
encourage any other person to solicit proxies or engage in a proxy contest
with respect to the election of directors or any other proposal to be
considered at an Election Meeting or present any other proposal for
consideration at such meeting, or (Z) act, or encourage any other person to
act, to cause a date to be set for the 2005 Meeting prior to the date
determined by the Company's Board of Directors for such meeting.
2. The Company shall reimburse RCM Acquisition Co., LLC ("RCM") a total of ---
$500,000 (the "Expense Reimbursement"), for fees, expenses, costs and
disbursements incurred by it and its affiliates and associates in
connection with RCM's proxy contest for the previously scheduled 2005
Meeting, and its due diligence investigation and negotiations
September 13, 2005
Page 2 of 5
in respect to a potential transaction with the Company, and related
matters. Fifty percent (50%) of the Expense Reimbursement shall be paid
promptly upon execution by all parties of this letter agreement, and the
remaining fifty percent (50%) balance shall be paid immediately after the
Effective Time of the Merger or the consummation of a Superior Proposal (as
such terms are defined in that certain Agreement and Plan of Merger (the
"Merger Agreement"), dated as of August 9, 2005, by and among certain
parties, including Ranger Mergerco, Inc., a Delaware corporation, and the
Company). RCM hereby represents and warrants to the Company that such
amount reflects actual fees, expenses, costs and disbursements incurred by
it and its affiliates and associates in connection with these matters.
3. Upon execution of this letter agreement, that certain Settlement Agreement,
dated as of June 9, 2003, as amended, by and among certain parties
including RCM and the Company, shall terminate, and shall be of no force or
effect (including as to any alleged breach thereof prior to the date of
this letter agreement), without any liability of any party.
4. Upon the earliest of (x) February 28, 2006 (if the Merger has not been
consummated by then), (y) the termination of the Merger Agreement or (z) a
vote by the stockholders of the Company against approval of the Merger
Agreement, whether or not the Merger Agreement has been terminated by
reason thereof (other than, in the case of (y) or (z) above, due to the
Company's entering into an agreement with respect to a Superior Proposal as
defined in the Merger Agreement, in which case any termination of, or vote
by the stockholders of the Company against approval of the agreement with
respect to such Superior Proposal shall have the effect provided for under
(y) or (z) above) (the earliest of such dates being referred to herein as
the "Expiration Date"), (i) notwithstanding the earlier occurrence of the
2005 Meeting or any other Election Meeting, the Company shall call and use
its reasonable best efforts to hold an Election Meeting not less than 45
and nor more than 75 days after such Expiration Date (it being acknowledged
that should the Company for any reason fail to so schedule and hold such
meeting, RCM shall be entitled to cause such meeting to be held as promptly
as practicable, and the Company shall reimburse RCM's reasonable
out-of-pocket costs and expenses (including reasonable legal fees and court
costs) incurred in connection with any action brought hereunder for the
purpose of enforcing the Company's obligation to hold an Election Meeting
within the aforementioned timeframe or under Section 211 of the Delaware
General Corporation Law for that purpose), and (ii) a notice letter to the
Company from RCM or any of its affiliates or associates which is then a
holder of common stock of the Company (including without limitation
Barington Companies Equity Partners, L.P. "Barington") in substantially
similar form and substance (subject to update in material respects for
subsequent changes, if any, in the information contained therein including,
without limitation, any change in the persons named as nominees) to the
Stockholder Nomination, delivered to the Company within ten (10) days after
the Company's public announcement of the new date of such Election Meeting,
shall be deemed to be sufficient notice under the Company's Amended and
Restated By-Laws for purposes of director nominations. Subject to
compliance in all material respects with the requirements of applicable law
(after providing a reasonable opportunity to cure any
September 13, 2005
Page 3 of 5
alleged noncompliance with applicable law or the Company's Amended and
Restated By-Laws), RCM or such affiliate or associate shall be afforded a
reasonable opportunity to present, and solicit proxies in support of, a
slate of nominees for election as directors at such meeting.
[REMAINDER OF XXXX LEFT BLANK INTENTIONALLY]
September 13, 2005
Page 4 of 5
Please confirm your agreement with the foregoing by signing and
returning to the undersigned the duplicate copy of this letter enclosed
herewith.
Very truly yours,
XXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx
----------------------------------
Xxxxx Xxxxx
Interim Chief Executive Officer
Agreed:
By: RCM ACQUISITION CO., LLC By: RAMIUS CAPITAL GROUP, LLC
By: C4S & Co. LLC, its Managing
Member
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
Authorized Signatory ---------------------------------
Xxxxxxx X. Xxxxxxx
Managing Member
By: BARINGTON COMPANIES EQUITY
PARTNERS, L.P. By: STARBOARD VALUE & OPPORTUNITY FUND,
LLC
By: Barington Companies By: Admiral Advisors, LLC, its
Investors, LLC, its general managing member
partner
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
By: /s/ Xxxxx X. Xxxxxxxxxxx Xxxxxxx X. Xxxxxxx
---------------------------- Authorized Signatory
Xxxxx X. Xxxxxxxxxxx
Managing Member
By: BARINGTON COMPANIES OFFSHORE By: PARCHE, LLC
FUND, LTD (BVI) By: Admiral Advisors, LLC, its
managing member
By: /s/ Xxxxx X. Xxxxxxxxxxx
----------------------------
Xxxxx X. Xxxxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
President --------------------------------
Xxxxxxx X. Xxxxxxx
Authorized Signatory
XXXXX X. XXXXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxxxx
--------------------------
