GOVERNANCE AND COOPERATION AGREEMENT
This Governance and Cooperation Agreement (this "Agreement") is made
and entered into as of May 20, 2008, by and among Xxxxxx Xxxxxxxxxxx, a
Delaware corporation (the "Company"), and MMI Investments, L.P., a Delaware
limited partnership ("MMI"), MCM Capital Management, LLC, a Delaware limited
liability company, Xxxx X. Xxxxxxxxxx and Xxxxxxx X. XxXxxxx (such entities and
natural persons, collectively, the "MMI Group" and each, individually, a
"member" of the MMI Group) which presently are or may be deemed to be members
of a "group" with respect to the beneficial ownership of the common stock of
the Company, par value $.01 per share (the "Common Stock"), pursuant to Rule
13d-5 promulgated by the Securities and Exchange Commission (the "SEC") under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
RECITALS:
WHEREAS, the Company and the MMI Group have engaged in various
discussions and communications concerning the Company's business, financial
performance and strategic plans; and
WHEREAS, the Company and the members of the MMI Group have determined
(i) that the interests of the Company and its stockholders would be best served
at this time by, among other things, providing for the appointment of certain
individuals to the Company's board of directors (the "Board") and (ii) to come
to an agreement with respect to certain matters related to the 2008 annual
meeting of stockholders of the Company (including any adjournment or
postponement thereof, the "2008 Annual Meeting") and certain other matters, as
provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree
as follows:
1. BOARD MATTERS; BOARD APPOINTMENTS; 2008 ANNUAL MEETING; COMMITTEE
APPOINTMENTS.
(a) The Company agrees to appoint Xxxx X. Xxxxxxxxxx
("Lifflander") and Xxxxxxx X. XxXxxxx ("XxXxxxx" and, together with Lifflander,
the "MMI Nominees") to serve as directors of the Board immediately following
execution of this Agreement. Lifflander will be appointed to the class of
directors to serve until the 2008 Annual Meeting and thereafter, if elected, for
a term of three years expiring at the Company's 2011 annual meeting of
stockholders, and XxXxxxx will be appointed to the class of directors to serve
for a term expiring at the Company's 2010 annual meeting of stockholders. The
term of each MMI Nominee is referred to herein, as applicable, as the "MMI
Nominee Term". At the 2008 Annual Meeting, the Board agrees to nominate
Lifflander for reelection as a director, recommend that the Company's
shareholders vote to elect Lifflander as a director, will recommend that the
Company's shareholders vote all proxies in favor of his election and will
otherwise use reasonable best efforts to cause the election of Lifflander in
the same manner as any other director nominees of the Board. The Company will
file a definitive proxy statement with the SEC which includes such information
regarding Lifflander as is required by federal securities laws in connection
with his nomination by the Company.
(b) Upon the appointment of the MMI Nominees to the Board, the
size of the Board shall be increased to thirteen (13) directors. Following the
2008 Annual Meeting, the size of the Board shall not be increased in excess of
thirteen (13) directors at any time while Lifflander is on the Board.
(c) If Lifflander is not elected to the Board at the 2008 Annual
Meeting, (i) the MMI Group shall thereafter be entitled to select a replacement
nominee whom, subject to a determination by the Board's Nominating & Governance
Committee that such individual is qualified, which may not be unreasonably
withheld, the Company or the Board will promptly appoint to the Board to serve
until the Company's 2009 annual meeting of stockholders (the "2009 Annual
Meeting"); and (ii) the Company will nominate any such replacement nominee for
election to the Board at the 2009 Annual Meeting to serve in place of
Lifflander for a term which will expire at the Company's 2011 annual meeting of
stockholders. Any replacement director appointed pursuant to this Section 1(c)
shall also be referred to as an "MMI Nominee" and the term for which such MMI
Nominee is appointed pursuant to this Section 1(c) shall be referred to as the
such MMI Nominee's "MMI Nominee Term."
(d) If at any time during the period from the date of this
Agreement until the end of the applicable MMI Nominee Term: (i) there shall
occur a vacancy in the Board seat previously occupied by Lifflander by reason
of his resignation, removal, death or incapacity, then the Company shall take
all necessary action to promptly fill such vacancy with a person proposed by
the MMI Group, subject to a determination by the independent members of the
Board's Nominating and Governance Committee that such individual is qualified,
which may not be unreasonably withheld; provided that the MMI Group may choose
not to fill such vacancy; or (ii) there shall occur a vacancy in the Board seat
previously occupied by XxXxxxx by reason of his resignation, removal, death or
incapacity, then the Company shall take all necessary action to promptly fill
such vacancy with a person proposed by the MMI Group, subject to a
determination by the independent members of the Board's Nominating and
Governance Committee that such individual is qualified; provided that if the
independent members of the Board's Nominating and Governance Committee
determine that such individual is not qualified, the MMI Group shall propose
three other individuals to fill such vacancy that MMI believes are qualified
and the Company shall appoint one of such three individuals to serve as a
replacement director. Any replacement director appointed pursuant to this
Section 1(d) shall be appointed for the applicable MMI Nominee Term of the MMI
Nominee replaced and shall also be referred to as an "MMI Nominee."
(e) The 2008 Annual Meeting shall be held on July 24, 2008, or
within 30 days thereafter. The 2009 Annual Meeting shall be held no later than
June 1, 2009.
(f) Immediately following the 2008 Annual Meeting, the Board
will appoint XxXxxxx to the Board's Compensation Committee and Finance Committee
and Lifflander to the Board's Finance Committee and Nominating and Governance
Committee, and the Board will appoint an MMI Nominee to each committee of the
Board created after the date of this Agreement, as and when requested by the
MMI Group. In addition, in the event the powers of the Board's Audit Committee
are expanded after the date of this Agreement in any material respect, the
Board will appoint an MMI Nominee to the Audit Committee, as and when requested
by the MMI Group
(g) As used in this Agreement, the terms "Affiliate" and
"Associate" shall have the respective meanings set forth in Rule 12b-2
promulgated by the SEC under the Exchange Act; the terms "beneficial owner" and
"beneficial ownership" shall have the respective meanings as set forth in Rule
13d-3 promulgated by the SEC under the Exchange Act; and the terms "person" or
"persons" shall mean any individual, corporation (including not-for-profit),
general or limited partnership, limited liability company, joint venture,
estate, trust, association, organization or other entity of any kind or nature.
(h) At any meeting of the Company's stockholders taking place
while Lifflander (or any replacement of Lifflander appointed pursuant to
Section 1(d) hereof) is on the Board, MMI shall, and shall cause each of its
Associates and Affiliates to, be present for quorum purposes and to vote all
shares of Common Stock that such person is entitled to vote as of the record
date for such meeting of stockholders (a) in favor of each director nominated
or recommended by the Board for election at such meeting and (b) against any
shareholder nominations for director which are not approved and recommended by
the Board for election at such meeting.
2. STANDSTILL. For a period commencing upon the date hereof and ending on the
later of (i) the date Lifflander (or any replacement of Lifflander appointed
pursuant to Section 1(d) hereof) shall cease to be a director of the Company
and (ii) September 15, 2008, no member of the MMI Group nor any of its
Affiliates, without the prior written consent of the Board, will, directly or
indirectly, do any of the following provided that this Section 2 shall not
limit any member of the MMI Group from non-public communications with the Board
and further shall not apply to actions taken by an MMI Nominee in his capacity
as a director while serving as a member of the Board:
(a) acquire, offer or agree to acquire (except by way of stock
dividends or other distributions or offerings made available to holders of
voting securities of the Company generally on a pro rata basis), directly or
indirectly, whether by purchase, tender or exchange offer, through the
acquisition of control of another person or entity, by joining a partnership,
limited partnership, syndicate or other "group" (within the meaning of Section
13(d)(3) of the Exchange Act), through swap or hedging transactions or
otherwise, any voting securities of the Company or any voting rights decoupled
from the underlying voting securities, if such acquisition, offer to acquire or
agreement to acquire would result in MMI (together with any other person or
entity, partnership, limited partnership, syndicate or other group) owning,
controlling or otherwise having any ownership or economic interest in more than
twenty percent (20%) of the outstanding shares of Common Stock;
(b) sell, offer or agree to sell, directly or indirectly,
through swap or hedging transactions or otherwise, whether by purchase, tender
or exchange offer, through the acquisition of control of another person or
entity, by joining a partnership, limited partnership, syndicate or other
group, any voting securities of the Company or any voting rights decoupled from
the underlying voting securities held by MMI or its Affiliates or Associates to
any third party, if such sale, offer to sell or agreement to sell would result
in such third party, together with its Affiliates and Associates, having an
ownership or economic interest in more than ten percent (10%) of the
outstanding shares of Common Stock; provided that nothing in this Section 2(b)
shall restrict any member of the MMI Group from engaging in open market
transactions, transactions with broker dealers in the ordinary course of their
business or transactions with entities that are permitted to and do file
Statements on Schedule 13G with respect to the Common Stock so long as such
member of the MMI Group does not have any knowledge of any plan or intention on
the part of the buyer to control or seek to control, or otherwise actively
influence the Board or management of, the Company;
(c) (i) engage, or in any way participate, directly or
indirectly, in any "solicitation" (as such term is defined in Rule 14a-1(l)
promulgated by the SEC under Exchange Act ) of proxies or consents, (ii) seek
to advise, encourage or influence any person or entity with respect to the
voting of any voting securities of the Company, (iii) initiate, propose or
otherwise "solicit" (as such term is defined in Rule 14a-1(l) promulgated by
the SEC under the Exchange Act) stockholders of the Company for the approval of
stockholder proposals or other business to be considered at a stockholders
meeting, or (iv) induce or attempt to induce any other person or entity to
initiate any such stockholder proposal; provided that nothing in this Section
2(c) shall limit the ability of the MMI Group to communicate to any third
party, including through the issuance of a public statement, how it intends to
vote the shares of Common Stock beneficially owned by it on any matter put to
the stockholders of the Company for their approval;
(d) form, join or in any way participate in a partnership,
syndicate, or other group, including without limitation any "group" as defined
under Section 13(d)(3) of the Exchange Act, with respect to any voting
securities of the Company, other than the MMI Group or a group that includes
only some or all of the persons or entities identified as "Reporting Persons"
(or Affiliates thereof) in MMI's statement on Schedule 13D/A filed with the
SEC on February 20, 2008;
(e) deposit any Company voting securities in any voting trust or
subject any Company voting securities to any arrangement or agreement with
respect to the voting thereof, except as expressly set forth in this Agreement;
(f) seek, alone or in concert with others, (1) to call a meeting
of stockholders or solicit consents from stockholders or conduct a nonbinding
referendum of stockholders, (2) to obtain representation on the Board except as
expressly permitted in this Agreement, (3) to effect the removal of any member
of the Board, (4) to make a stockholder proposal at any meeting of the
stockholders of the Company, (5) to make a request for a list of the Company's
stockholders, or (6) to amend any provision of the Company's certificate of
incorporation or bylaws;
(g) effect or seek to effect (including, without limitation, by
entering into any negotiations, agreements or understandings whether or not
legally enforceable with any person), offer or propose to effect, cause or
participate in, or in any way assist or facilitate any other person to effect
or seek, offer or propose to effect or participate in, (i) any acquisition of
more than fifteen percent (15%) of any securities, or any material assets or
businesses, of the Company or any of its subsidiaries, (ii) any tender offer or
exchange offer, merger, acquisition, share exchange or other business
combination involving more than fifteen percent (15%) of any of the voting
securities or any of the material businesses or assets of the Company or any of
its subsidiaries, or (iii) any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with respect to the Company or
any of its subsidiaries or any material portion of its or their businesses
(each a "Transaction"); provided that nothing in this Section 2(g) shall
restrict any member of the MMI Group from engaging in discussions regarding any
proposed Transaction so long as the MMI Group notifies the Company of any bona
fide proposals relating to a potential Transaction.
(h) otherwise act, alone or in concert with others, to control
or seek to control or influence or seek to influence the management, the Board
or policies of the Company, except as otherwise expressly permitted by this
Agreement;
(i) unless required by law, make or issue, or cause to be made
or issued, any public disclosure, announcement or statement (including without
limitation the filing of any document or report with the SEC or any other
governmental agency or any disclosure to any journalist, member of the media or
securities analyst) (i) in support of any matter described in the foregoing
paragraphs of this Section 2, (ii) negatively commenting upon the Company,
including the Company's business, management or board of directors, or (iii)
inconsistent with, or otherwise contrary to, the provisions of this Agreement
or the statements in the joint press release issued pursuant to this Agreement;
or
(j) enter into any negotiations, agreements or understandings
with any third party with respect to the foregoing, or advise, assist,
encourage or seek to persuade any third party to take any action with respect
to any of the foregoing, or otherwise take or cause any action inconsistent
with any of the foregoing.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to the MMI Group that (a) the Company has the corporate power and
authority to execute the Agreement and to bind it thereto, (b) this Agreement
has been duly and validly authorized, executed and delivered by the Company,
constitutes a valid and binding obligation and agreement of the Company, and is
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or similar laws generally
affecting the rights of creditors and subject to general equity principles, (c)
the execution, delivery and performance of this Agreement by the Company does
not and will not (i) violate or conflict with any law, rule, regulation, order,
judgment or decree applicable to it, or (ii) result in any breach or violation
of or constitute a default (or an event which with notice or lapse of time or
both could become a default) under or pursuant to, or result in the loss of a
material benefit under, or give any right of termination, amendment,
acceleration or cancellation of, any organizational document, agreement,
contract, commitment, understanding or arrangement to which the Company is a
party or by which it is bound, (d) no consent, approval, authorization, license
or clearance of, or filing or registration with, or notification to, any court,
legislative, executive or regulatory authority or agency is required in order
to permit the Company to perform its obligations under this Agreement, except
for such as have been obtained, and (e) there have been no changes to the
powers, responsibilities or membership of any committee of the Board and no new
committee of the Board has been created, in each case since the filing on April
29, 2008 of Amendment No. 1 to the Company's annual report on Form 10-K/A for
the fiscal year ended December 31, 2007 (except as previously disclosed in
writing to the MMI Group).
4. REPRESENTATIONS AND WARRANTIES OF THE MMI GROUP. The MMI Group shall cause
its Affiliates to comply with the terms of this Agreement. Each member of the
MMI Group listed herein, on behalf of himself or itself, as applicable,
represents and warrants to the Company that (a) this Agreement has been duly
and validly authorized, executed and delivered by such member, and constitutes
a valid and binding obligation and agreement of such member, enforceable
against such member in accordance with its terms, except as enforcement thereof
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or similar laws generally affecting the
rights of creditors and subject to general equity principles, (b) each
signatory to this Agreement by any member of the MMI Group has the authority to
execute the Agreement on behalf of himself and the applicable member of the MMI
Group associated with that signatory's name, and to bind such member of the MMI
Group to the terms hereof, (c) no member of the MMI Group is party to any
agreement regarding the voting or disposition of shares of Common Stock, (d)
the execution, delivery and performance of this Agreement by each member of the
MMI Group does not and will not (i) violate or conflict with any law, rule,
regulation, order, judgment or decree applicable to it, or (ii) result in any
breach or violation of or constitute a default (or an event which with notice
or lapse of time or both could become a default) under or pursuant to, or
result in the loss of a material benefit under, or give any right of
termination, amendment, acceleration or cancellation of, any organizational
document, agreement, contract, commitment, understanding or arrangement to
which such member is a party or by which it is bound, (e) no consent, approval,
authorization, license or clearance of, or filing or registration with, or
notification to, any court, legislative, executive or regulatory authority or
agency is required in order to permit any member of the MMI Group to perform
such member's obligations under this Agreement, except for such as have been
obtained and (f) the number of shares of Common Stock beneficially owned by the
MMI Group as of the date of this Agreement is 32,322,000.
5. CONFIDENTIALITY. The members of the MMI Group (each, a "Recipient") each
acknowledge the confidential and proprietary nature of the Confidential
Information (as defined below) and agree that the Confidential Information (a)
will be kept confidential by Recipient and Recipient's Representatives (as
defined below) and (b) will not be disclosed by Recipient (except to other
Recipients and their Affiliates and Associates and such person's
Representatives to the extent contemplated by this Agreement) or by Recipient's
Representatives to any person except with the specific prior written consent of
the Company or except as expressly otherwise permitted by this Agreement. It
is understood that (i) Recipient may disclose Confidential Information only to
those of Recipient's Representatives who are informed by Recipient of the
confidential nature of the Confidential Information and the obligations of this
Agreement, (ii) Recipient shall be responsible for the breach of the provisions
of this Section 5 by Recipient's Representatives and (iii) the provisions of
this Section 5 shall not apply to any director of the Company in his or her
capacity as such. As used in this Agreement, the term "Confidential
Information" means and includes any and all of the information concerning the
business and affairs of the Company that may hereafter be disclosed to
Recipient by the Company or by the directors, officers, employees, agents,
consultants, advisors or other representatives, including legal counsel,
accountants and financial advisors ("Representatives") of the Company; provided
that "Confidential Information" shall not include information that (a) was in
or enters the public domain or was or becomes generally available to the public
other than as a result of disclosure by Recipient or any Representative
thereof, (b) was independently acquired by Recipient or its Representatives
without violating any of the obligations of Recipient or its Representatives
under this Agreement, or under any other contractual, legal, fiduciary or
binding obligation of Recipient or its Representatives with or to the Company,
(c) was available, or becomes available, to Recipient or its Representatives on
a nonconfidential basis other than as a result of its disclosure to Recipient
by the Company or any Representative of the Company, but only if to the
knowledge of Recipient the source of such information (A) is not bound by a
confidentiality agreement with the Company or (B) is not otherwise prohibited
from transmitting the information to Recipient or Recipient's Representatives
by a contractual, legal, fiduciary or other binding obligation with or to the
Company, or (d) was independently developed by Recipient or its Representatives
without use of or reference to any Confidential Information. The Company
acknowledges that, other than the MMI Nominees, no member of the MMI Group or
its Affiliates, Associates or Representatives thereof shall be deemed to be in
possession of Confidential Information solely by reason of receipt of such
Confidential Information by any MMI Nominee. The members of the MMI Group
acknowledge that they, as well as their Representatives, are aware that the
United States securities laws prohibit any person who has material non-public
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.
6. PRESS RELEASE AND PUBLIC ANNOUNCEMENTS. Following the execution of this
Agreement, the Company shall issue the press release announcing the terms of
this Agreement, in the form attached hereto as Exhibit A (the "Press Release"),
and shall file a Current Report on Form 8-K with the SEC disclosing the terms
of this Agreement and attaching as exhibits this Agreement and the Press
Release. None of the parties hereto will make any other public statements
(including in any filing with the SEC or any other regulatory or governmental
agency, including any stock exchange) that are inconsistent with the statements
in the Press Release; provided, however, that nothing herein shall (a) limit
the ability of the Company to make any statement required by law or stock
exchange rule or the ability of the directors to make any statement required by
their fiduciary duties or (b) limit the ability of the MMI Group to (i) issue
any public statement, including any statement ursuant to Rule 14a-1(l)(2)(iv)
under the Exchange Act, regarding its opposition to any matters submitted for a
vote of stockholders or (ii) issue any public statement, including any
statement pursuant to Rule 14a-1(l)(2)(iv) under the Exchange Act, regarding
how it intends to vote and the reasons therefor with respect to any
extraordinary transaction of any kind or nature between the Company and any
third party or related party or (iii) in a manner consistent with this
Agreement, file an amendment or amendments to its Schedule 13D regarding the
Common Stock as required by law or to make other securities or tax filings as
required by law; provided further, however, that the foregoing proviso shall
not permit either party to make disparaging or negative personal remarks about
the other's officers or directors.
7. SPECIFIC PERFORMANCE. Each of the members of the MMI Group, on the one
hand, and the Company, on the other hand, acknowledges and agrees that
irreparable injury to the other party hereto would occur in the event any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached and that such injury would not be
adequately compensable in damages. It is accordingly agreed that the members
of the MMI Group or any of them, on the one hand, and the Company, on the other
hand (the "Moving Party"), shall each be entitled to specific enforcement of,
and injunctive relief to prevent any violation of, the terms hereof, and the
other party hereto will not take action, directly or indirectly, in opposition
to the Moving Party seeking such relief on the grounds that any other remedy or
relief is available at law or in equity.
8. EXPENSES. The Company shall reimburse the MMI Group for its reasonable,
documented out-of-pocket fees and expenses incurred (including legal expenses)
in connection with its Schedule 13D, matters related to the 2008 Annual Meeting
and the negotiation and execution of this Agreement, provided that such
reimbursement shall not exceed $125,000 in the aggregate.
9. SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that the parties would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such which may be hereafter declared invalid, void or
unenforceable. In addition, the parties agree to use their best efforts to
agree upon and substitute a valid and enforceable term, provision, covenant or
restriction for any of such that is held invalid, void or unenforceable by a
court of competent jurisdiction.
10. NOTICES. Any notices, consents, determinations, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered:
(i) upon receipt, when delivered personally; (ii) upon receipt, when sent by
facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one
(1) business day after deposit with a nationally recognized overnight delivery
service, in each case properly addressed to the party to receive the same. The
addresses and facsimile numbers for such communications shall be:
If to the Company:
Xxxxxx Xxxxxxxxxxx
Xxxxxx Xxx
Xxxx Xxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxx and Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to the MMI Group or any member of the MMI Group:
MMI Investments, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
11. APPLICABLE LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without regard
to any conflict of laws provisions thereof. Each of the parties hereto
irrevocably agrees that any legal action or proceeding with respect to this
Agreement and the rights and obligations arising hereunder, or for recognition
and enforcement of any judgment in respect of this Agreement and the rights and
obligations arising hereunder brought by the other party hereto or its
successors or assigns, shall be brought and determined exclusively in the
Delaware Court of Chancery and any state appellate court therefrom within the
State of Delaware (or, if the Delaware Court of Chancery declines to accept, or
determines that it does not have, jurisdiction over a particular matter, any
state or federal court within the State of Delaware). Each of the parties
hereto hereby irrevocably submits with regard to any such action or proceeding
for itself and in respect of its property, generally and unconditionally, to
the personal jurisdiction of the aforesaid courts and agrees that it will not
bring any action relating to this Agreement in any court other than the
aforesaid courts. Each of the parties hereto hereby irrevocably waives, and
agrees not to assert in any action or proceeding with respect to this
Agreement, (i) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason, (ii) any claim that it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise) and (iii) to the fullest extent permitted
by applicable legal requirements, any claim that (A) the suit, action or
proceeding in such court is brought in an inconvenient forum, (B) the venue of
such suit, action or proceeding is improper or (C) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts.
12. COUNTERPARTS. This Agreement and any amendments hereto may be executed and
delivered in one or more counterparts, and by the different parties hereto in
separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement, and shall become effective when counterparts have been signed by
each party hereto and delivered to the other parties hereto, it being
understood that all parties need not sign the same counterpart. In the event
that any signature to this Agreement or any amendment hereto is delivered by
facsimile transmission or by e-mail delivery of a ".pdf" format data file, such
signature shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force and effect
as if such facsimile or ".pdf" signature page were an original thereof.
13. ENTIRE AGREEMENT; AMENDMENT AND WAIVER; SUCCESSORS AND ASSIGNS. This
Agreement contains the entire understanding of the parties hereto with respect
to its subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings between the parties
other than those expressly set forth herein. This Agreement may be amended
only by a written instrument duly executed by the parties hereto or their
respective successors or assigns. No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
such right, power or remedy by such party preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. All
remedies hereunder are cumulative and are not exclusive of any other remedies
provided by law. The terms and conditions of this Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the parties hereto and
their respective successors, heirs, executors, legal representatives, and
permitted assigns. No party shall assign this Agreement or any rights or
obligations hereunder without, with respect to any member of the MMI Group, the
prior written consent of the Company, and with respect to the Company, the
prior written consent of the MMI Group.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized signatories of the parties as of the date hereof.
XXXXXX XXXXXXXXXXX
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: Chairman of the Board
THE MMI GROUP:
MMI INVESTMENTS, L.P.
By: MCM Capital Management, LLC
General Partner
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
MCM CAPITAL MANAGEMENT, LLC
By: /s/ Xxxx X. Xxxxxxxxxx
----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
/s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Xxxxxxxxxx
/s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx
