Exhibit 99.1
Execution Copy
AGREEMENT
This Agreement is made and entered into as of the 16th day of
January, 1998, by and among the individuals named on the signature pages of this
Agreement (each a "Shareholder" and collectively, the "Shareholders").
WHEREAS, each of the Shareholders is a party to a certain
Agreement and Plan of Reorganization dated as of December 5, 1997 (the "Merger
Agreement") among Brandywine Asset Management, Inc., LM Acquisition Corp., Xxxx
Xxxxx, Inc. ("Xxxx Xxxxx") and the Shareholders; and
WHEREAS, pursuant to the Merger Agreement and the transactions
contemplated thereby, each of the Shareholders has received the number of shares
of common stock of Xxxx Xxxxx (collectively, the "Shares"), set forth opposite
their respective names on Exhibit A attached hereto; and
WHEREAS, pursuant to Article 9 of the Merger Agreement, Xxxx
Xxxxx has filed with the Securities and Exchange Commission a shelf registration
statement on Form S-3 pursuant to Rule 415 under the Securities Act of 1933, as
amended (the "Form S-3"); and
WHEREAS, pursuant to Section 9.9 of the Merger Agreement and
the Form S-3, between the date hereof and November 1, 1998 (the "Restricted
Period"), the Shareholders may not make sales of the Shares pursuant to the Form
S-3 in an aggregate amount in excess of fifteen percent (15%) of the total
number of Shares minus the total number of Shares sold by the Shareholders in
one or more underwritten public offerings (which underwritten public offerings
voluntarily may, but are not otherwise required by the Merger Agreement to, be
arranged by Xxxx Xxxxx during the Restricted Period); and
WHEREAS, the Shareholders desire to enter into this Agreement,
which imposes certain restrictions and obligations on themselves in order to
ensure compliance by the Shareholders with the foregoing restrictions on the
sale of the Shares.
In consideration of the premises and the mutual terms,
conditions and other agreements set forth herein, intending to be legally bound,
the parties hereby agree as follows:
1. No Shareholder shall, directly or indirectly, absolutely or
conditionally, voluntarily or involuntarily, sell any of the Shares owned by
such Shareholder pursuant to the Form S-3 except in accordance with this
Agreement.
2. During the Restricted Period, each Shareholder shall be
entitled to sell an aggregate number of Shares equal to fifteen percent (15%) of
the Shares set forth opposite such Shareholder's name on Exhibit A attached
hereto, less the aggregate number of Shares sold by such Shareholder in one or
more underwritten public offerings, whether or not pursuant to the Form S-3.
3. After the Restricted Period, each Shareholder shall be free
to sell such number of shares as he or she desires, each such sale to be made in
accordance with applicable law and consistent with each Shareholder's covenants
contained in Sections 9.4(b) and 9.4(c) of the Agreement and the intent
expressed in Section 2.8 of the Agreement.
4. If a Shareholder desires to sell Shares during the
Restricted Period, such Shareholder shall give written notice ("Notice") to each
other Shareholder, at the address set forth opposite each other Shareholder's
name on Exhibit B attached hereto, in substantially the form of Exhibit C
attached hereto. The Notice shall be given at least five business days prior to
the proposed sale. The Notice shall be delivered personally, mailed first class
or sent by overnight courier guaranteeing next-day delivery, and shall be deemed
to have been given (a) on the date given, if delivered personally or sent by
confirmed telefacsimile transmission, (b) five days after the date of deposit,
if mailed by first class mail and (c) one day after delivery to a courier, if
sent by overnight courier guaranteeing next-day delivery. Any Shareholder may
change the address for delivery of notices to it under this Agreement by
delivering notice of such change to the other Shareholders in accordance with
this Section 3.
5. Each Shareholder agrees to indemnify and hold the other
Shareholders harmless from any and all losses, direct, incidental, consequential
and punitive damages, costs and expenses (including, without limitation, court
costs and reasonable attorneys' fees) suffered or incurred by each of them
arising out of or resulting from any breach of this Agreement by such
Shareholder. In the event that any Shareholder (the "Indemnified Party") desires
to make a claim for indemnification against any other Shareholder (the
"Indemnifying Party"), the provisions of Section 11.5 of the Merger Agreement
relating to the giving of notice, the defense and settlement of any third party
claim and subrogation shall apply.
6. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to the choice of law provisions thereof.
7. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, executors, legal
representatives and assigns.
8. This Agreement, together with Sections 9.4(b), 9.4(c) and
9.9 of the Agreement, represents the entire agreement and understanding of the
parties with reference to the transactions set forth herein.
9. This Agreement may be amended, modified or supplemented
only by a written instrument executed by each of the Shareholders.
10. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original copy and all of which
together shall be considered one and same agreement, and shall become a binding
agreement when one or more counterparts have been signed by each Shareholder and
delivered to the other Shareholders.
11. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement,
all as of the day and year first above written.
/s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx
/s/ Xxxxxxxx X. Xxxxxxx, Xx.
Xxxxxxxx X. Xxxxxxx, Xx.
/s/ Xxx X. Xxxxx
Xxx X. Xxxxx
/s/ Xxxxxxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx
/s/ Eral X. Xxxxxxx
Xxxx X. Xxxxxxx
/s/ W. Xxxxxxx Xxxxxxxxx
W. Xxxxxxx Xxxxxxxxx
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx
EXHIBIT A
Name Number of Shares
Xxxxxx X. Xxxx 13,687
Xxxxxxxx X. Xxxxxxx 155,446
Xxx X. Xxxxx 977
Xxxxxxxxx X. Xxxxxx 1,955
Xxxx X. XxXxxx 977
Xxxx X. Xxxxxxxxxx 188,687
Xxxx X. Xxxxxxx 4,888
W. Xxxxxxx Xxxxxxxxx 823,184
Xxxxx X. Xxxxxxx 25,419
Xxxxxxx X. Xxxxxxx 178,910
Xxxxx X. Xxxxxxxx 18,575
Xxxx X. Xxxxxxx 214,106
Xxxx X. Xxxxxxxx 255,167
Xxxxx X. Xxxx 165,223
Xxxxxxx X. Xxxxx 58,659
Xxxxxxx X. Xxxxx 394,972
Xxxxxx X. Xxxxxxxxx 25,419
Xxxxxx X. Xxxxxxxxx 47,905
---------
2,574,156
