Exhibit 10.1
AGREEMENT
This agreement (the "AGREEMENT") dated as of May 24, 2005, is entered
into by, between and among, Xxxxx Corporation, a Delaware corporation (the
"COMPANY") and Loeb Arbitrage Fund, a New York limited partnership, Loeb
Arbitrage Management, a Delaware corporation, Loeb Partners Corporation, a
Delaware corporation, Loeb Holding Corporation, a Maryland corporation, Loeb
Offshore Fund, Ltd., a Cayman Islands exempted company, Loeb Offshore
Management, LLC, a Delaware limited liability company, Loeb Marathon Fund, a
Delaware limited partnership, Loeb Marathon Offshore Fund, Ltd., a Cayman
Islands exempted company (each a member of, and who shall collectively be
referred to as, "LOEB" and together with the Company, the "PARTIES").
RECITALS
WHEREAS, it is the Company's present intention to conduct a tender
offer for the purchase of its common stock to commence within approximately 60
days provided it can reach certain agreements with Loeb regarding Loeb's sale of
Company's common stock;
WHEREAS, the Parties have negotiated to enter in this Agreement to
provide for the orderly disposition of Loeb's holdings of the Company's common
stock and the orderly governance of the Company going forward;
NOW, THEREFORE, intending to be legally bound, and for, and in
consideration of, the terms, conditions and mutual obligations set forth herein,
including the performance by each of the Parties of their respective mutual and
independent covenants, representations and obligations as set forth herein, and
understanding the meaning and legal effect of entering into this Agreement, the
Parties hereto stipulate, agree, warrant and represent as follows:
SECTION 1. COMPANY TENDER OFFER AND STOCK DISPOSITION.
(a) The Company agrees that it shall conduct a tender offer for the
purchase of its common stock having an aggregate value of $185 million
at a per share price of $42.00 to be commenced on or before August 1,
2005 (the "TENDER OFFER").
(b) The Company confirms that it has received a commitment from the Board
of Directors and senior management of the Company that they will not
tender more than 25% of their holdings of the Company's common stock in
the Tender Offer.
(c) Loeb agrees that it will, and will ensure that its affiliates or
associates shall, tender any and all shares of the Company's common
stock , par value $.01, that it owns, directly or indirectly,
beneficially or otherwise (the "LOEB'S COMMON STOCK"), in the Tender
Offer.
(d) Loeb agrees that it shall not dispose of Loeb's Common Stock in a block
sale(s) (for the purpose of this Agreement "block sale" shall mean, a
public or private sale, in a single or series of coordinated
transaction(s), of a block of 100,000 or more shares of Company common
stock) between the date first written above and the date upon which
Loeb tenders Loeb's Common Stock in the Tender Offer. Loeb further
agrees that following the close of the Tender Offer, to the extent it
has identified, or been presented with, a third party that is willing
and able to acquire, in a block sale(s), any proportion of, or all of,
Loeb's Common Stock, the Company shall have a right of first refusal
with respect thereto.
(e) Loeb agrees that it shall not acquire any additional shares of the
Company's common stock, directly or indirectly, beneficially or
otherwise, for a period of 5 years commencing as of the date first
written above (the "RESTRICTION PERIOD").
SECTION 2. STANDSTILL PROVISIONS. Loeb agrees that during the Restriction Period
neither it nor any affiliate nor associate shall:
(a) make any statement, proposal or offer, whether written or oral, to the
Company's Board of Directors or to any director, officer or agent of
the Company, or make any public announcement, proposal or offer with
respect to an acquisition, merger (or other business combination),
sale, transfer of the Company's assets, recapitalization, dividend,
share repurchase, liquidation or other extraordinary corporate
transaction with the Company or any other transaction that could result
in a change of control of the Company; and Loeb commits not to solicit
or encourage any other person to make such an announcement, statement,
proposal or offer, or to take any action that might require the Company
to make a public announcement regarding the possibility of any such
transaction or similar transaction, and commits not to advise, assist
or encourage any other person in connection with any of the foregoing.
(b) initiate, encourage, participate in or engage in any proxy solicitation
or contest or otherwise publicly oppose the Board of Directors of the
Company.
(c) initiate, encourage or propose any shareholder proposal regarding the
Company.
(d) disclose to any third party, or make any filing under the Securities
Exchange Act of 1934, as amended, (the "EXCHANGE ACT") including,
without limitation, under Section 13(d) thereof, disclosing, any
intention, plan or arrangement inconsistent with any term or provision
of this Agreement.
(e) join, or in any way participate, in a "group" as that term is defined
in the Exchange Act in connection with any action, plan, arrangement or
objective prohibited by or inconsistent with any term or provision of
this Agreement.
(f) seek to control the management, policies, affairs, actions, or business
of the Company, including, without limitation, by taking any action to
seek to obtain representation on the Company's Board of Directors.
(g) have any communications with any of the Company's other shareholders,
directors, officers, associates, employees, customers or suppliers
regarding matters relating to
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the Company that could reasonably be expected to, or with an intention
to, interfere with or otherwise adversely affect the operation of the
Company and/or the Company's relationship with any of the
aforementioned constituents of the Company.
SECTION 3. VOTING. Loeb agrees that it shall vote any and all shares of Loeb's
Common Stock in favor of the position advocated by a majority of the Company's
Board of Directors until such time as Loeb has completed the disposition of
Loeb's Common Stock in accordance with the terms and provisions of this
Agreement.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Representations of the Company. The Company represents, warrants and
covenants to Loeb that: (i) the Company has full legal right, power and
authority to enter into and perform this Agreement; (ii) the execution
and delivery of this Agreement by the Company and the consummation by
it of the transactions, terms and conditions contemplated by this
Agreement have been duly authorized by the Company; (iii) this
Agreement constitutes a valid, binding and enforceable agreement of the
Company; and (iv) the Company will use its best efforts to commence the
Tender Offer within 60 days of the date first written above.
(b) Representations of Loeb. Each member of Loeb, jointly and severally,
represents, warrants and covenants to the Company that: (i) it has the
full legal right, power and authority to enter into and perform this
Agreement; (ii) the execution and delivery of this Agreement and the
consummation of the transactions, terms, conditions, restrictions and
limitations contemplated by this Agreement have been duly authorized by
each member of Loeb; (iii) this Agreement constitutes a valid, binding
and enforceable Agreement of each member of Loeb; (iv) Loeb owns,
directly or indirectly, beneficially or otherwise, all of the Loeb's
Common Stock, and except as otherwise indicated to the Company, none of
Loeb, any member of Loeb or any affiliate or associate thereof owns any
other Company common stock, directly or indirectly, beneficially or
otherwise, or any rights or interests in any Company common stock; (v)
no member of Loeb has any agreement, arrangement or understanding with
any person including, without limitation, any possible shareholder
proposal with respect to the Company, with respect to any possible
solicitation of proxies for any matter with respect to the Company or
with respect to any matter prohibited by Sections 1, 2 or 3 of this
Agreement; (vi) it shall, and shall ensure that any and all affiliates,
associates, directors, officers, partners (general or limited), members
and principles of each member of Loeb, comply with and fulfill all of
the obligations and restrictions that apply to Loeb pursuant to this
Agreement; (vii) it will not request, directly or indirectly, a waiver
or modification of any provision of this Agreement; and (viii) each
member of Loeb hereby waives and releases any and all claims against
the Company, its directors, officers and agents arising under this
Agreement or otherwise, including, without limitation, any claim to
terminate or suspend performance of this Agreement other than in
accordance with Section 5.
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SECTION 5. NULLIFICATION. Either of the Parties to this Agreement may terminate
this Agreement rendering it null, void and of no force or effect, if the Company
fails for any reason to commence the Tender Offer. Notwithstanding the previous
sentence, the Company may not terminate this Agreement, unless it has made a
good faith effort to obtain the necessary financing and make the appropriate
regulatory filings to commence the Tender Offer pursuant to the terms of this
Agreement.
SECTION 6. MISCELLANEOUS.
(a) Specific Performance. The Company and each member of Loeb acknowledge
and agree that irreparable damage would occur in the event that any
provision, term, condition, representation, warranty, covenant or
restriction were not performed or complied with in accordance with
their specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this
Agreement and to enforce specifically the terms and provisions hereof,
this being in addition to any other remedy to which they may be
entitled by law or equity.
(b) Joint and Several Liability. Each member of Loeb shall be jointly and
severally liable for any breach of this Agreement by any other member
of Loeb.
(c) Non-Disclosure. The Company agrees promptly to issue a press release
announcing, among other things, the execution of this Agreement and the
material non-public information contained herein. Except for the
issuance of such press release, the Company and Loeb agree not to make
(and Loeb agrees to ensure that its affiliates, associates, directors,
officers, partners (general or limited), members and principals do not
make) any disclosure with respect to this Agreement, the performance
hereof or any matter covered hereby; provided that, neither the Company
nor Loeb shall be restricted from making such disclosure if and to the
extent it shall be advised by independent legal counsel that such
disclosure is required by law or administrative regulation or by the
regulations of the American Stock Exchange; provided however, that
prior to such a disclosure, the disclosing party shall provide notice
to the other party of such intention to disclose and the notice shall
provide a reasoned legal analysis as to why such disclosure is required
by law, administrative regulation or regulation of the American Stock
Exchange.
(d) 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.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. This
Agreement may be executed by facsimile signatures.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Delaware without
regard to conflicts of laws
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principally that would require the application of any other law. Any
action or proceeding seeking to enforce any provision of, or based on
any claims for equitable relief arising out of this Agreement may be
brought against any of the Parties only in the federal or state courts
of Delaware and each of the Parties consents to the jurisdiction of
such courts (and of the appropriate appellate courts) in any such
action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding
sentence may be served on any party anywhere in the world.
(g) Entire Agreement. This Agreement contains the entire understanding of
the Parties with respect to the matters covered hereby and this
Agreement may be amended only by an agreement in writing executed by
the Parties hereto.
(h) Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and be effective (a) when
personally delivered on a business day during normal business hours at
the address designated below; or (b)on the business day following the
date of mailing by overnight courier, fully prepaid, addressed to such
address.
i. Notice to the Company:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxx 00000-0000
Attention:
ii. Notice to Loeb:
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IN WITNESS, WHEREOF, the Parties hereto have executed this Agreement as
of the date first written above.
XXXXX CORPORATION
By: /s/ XXXXX X. XXXXXXX
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Name: Xxxxx X. Xxxxxxx
Title: Board Chairman
LOEB ARBITRAGE FUND
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: President, General Partner
LOEB ARBITRAGE MANAGEMENT
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
LOEB PARTNERS CORPORATION
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Executive Vice President
LOEB HOLDING CORPORATION
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Officer
LOEB OFFSHORE FUND, LIMITED
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
LOEB OFFSHORE MANAGEMENT, LLC
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: President
LOEB MARATHON FUND
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: President, General Partner
LOEB MARATHON OFFSHORE FUND, LIMITED
By: /s/ XXXXXX X. XXXX
---------------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Director
