Exhibit 99.1
AGREEMENT
AGREEMENT made as of this 31st day of January, 2003, by and among
BRESLER FAMILY INVESTORS, L.L.C., a Maryland limited liability company with an
address of 00000 Xxxxxxxxx Xxxxx, Xxxxxxxxx 0000, Xxxxxxxxx, XX 00000
("Xxxxxxx") and each of the parties set forth on Schedule A attached hereto
(each, a "Shareholder" and collectively, the "Shareholders").
Background
Each Shareholder is the record owner of that number of shares
("Shares") of the voting common stock, par value $0.01 per share (the "Common
Stock"), of Xxxxxxx & Xxxxxx, Inc. (the "Corporation") as set forth opposite
such Shareholder's name on Schedule A attached hereto. Xxxxxxx and the
Shareholders have agreed that each Shareholder will xxxxx Xxxxxxx certain rights
with respect to the Shares held by the Shareholders, on the terms and conditions
set forth herein.
NOW, THEREFORE, in exchange for the mutual covenants and agreements
contained herein, the payment of $0.50 per share by Xxxxxxx to each Shareholder
upon execution of this Agreement and other good and valuable consideration, the
receipt of which is hereby expressly acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
1. Restrictions on Transfers.
(a) If at any time during the Term (as defined below), any
Shareholders (an "Offeror") decides to sell, gift, or otherwise dispose of
Shares (including both Shares held by the Offeror on the date hereof and any
Shares hereafter acquired by the Offeror) (a "Transfer") to another person,
either (i) in an "over the counter" open market transaction, or (ii) pursuant to
the terms of a bona fide offer to purchase such Shares (including without
limitation any tender offer for shares of Common Stock), the Offeror must first
give Xxxxxxx written notice of such decision and offer to sell such Shares (the
"Offered Shares") to Xxxxxxx either (A) in the case described in clause (i)
above, for cash equal to the mean between the closing "bid" and "ask" prices on
the date of such notice as reported by the OTCBB or such other quotation system
on which "bid" and "ask" prices in the Common Stock are then being reported, or
(B) at the same price and on the same terms and conditions as the proposed sale
pursuant to a bona fide offer described in clause (ii) above. Such notice and
offer shall state whether the offer is under clause (i) or (ii) and, if under
clause (ii), shall state the identity of the offeror and the terms and
conditions of the proposed sale.
(b) Notwithstanding the foregoing, any Shareholder that is a natural
person may Transfer all or any part of his or her Shares to any one or more of
such Shareholder's spouse and/or lineal descendants or any partnership or trust
for such Shareholder and/or his or her spouse and/or lineal descendants (each, a
"Permitted Transferee") and any such Permitted Transferees may re-Transfer such
Shares to such Shareholder, without complying with the provisions of
Subparagraph 1(a), provided that any such Transfer shall be made subject to all
of the terms of this Agreement and shall be ineffective unless the Permitted
Transferee (or the guardian of a minor Permitted Transferee) agrees in writing
to be bound by this Agreement.
(c) For purposes of this Agreement, "Term" shall mean one (1) year
from the date hereof, provided that Xxxxxxx may extend the Term for up to two
(2) additional one (1) year periods each upon written notice to the Shareholders
prior to the expiration of the then-current term accompanied by payment of a fee
for the extension equal to $0.50 per Share.
2. Purchase Option.
(a) Upon receipt of a notice and offer from an Offeror pursuant to
Subparagraph 1(a), Xxxxxxx may elect to purchase all, but not less than all, of
the Offered Shares by giving written notice of such election to the Offeror
within one (1) business day from receipt of such notice. In the case of an offer
and notice pursuant to Subparagraph 1(a)(i), the purchase price shall be due and
payable no later than three (3) business days following notice of acceptance of
the offer, upon tender of certificates evidencing the Shares duly endorsed for
transfer. In the case of an offer and notice pursuant to Subparagraph 1(a)(ii)
above, payment of the purchase price shall be in accordance with the bona fide
offer.
(b) If Xxxxxxx shall fail to accept the offer pursuant to Paragraph
1 above within the time period set forth above as to all Offered Shares, the
Offeror may, within sixty (60) days thereafter, sell all of such Offered Shares
on the open market (if notice was given under Subparagraph 1(a)(i)) or pursuant
to the original bona fide offer transmitted to Xxxxxxx and on the terms and
conditions set forth in the notice to Xxxxxxx of such bona fide offer (where
notice was given under Subparagraph 1(a)(ii)), free and clear of this Agreement.
If such sale of the Offered Shares on the open market or pursuant to said bona
fide offer, as the case may be, is not consummated within said sixty (60) day
period, such sale shall not be permitted and the Offered Shares once again shall
be subject to all of the restrictions of this Agreement.
(c) If nonfungible property such as securities or real estate
constitutes a portion of the purchase price due and payable pursuant to the bona
fide offer and such bona fide offer depends on the unique situation of the bona
fide offeree, or otherwise cannot be precisely duplicated by anyone other than
the bona fide offeree, purchases by Xxxxxxx pursuant to an offer under
Subparagraph 1(a)(ii) shall be made for a consideration and upon terms and
conditions which constitute the reasonable economic equivalent of the purchase
price and terms of the bona fide offer, as mutually determined by the parties.
For purposes of this Subparagraph 2(c), Xxxxxxx'x promissory note shall be
considered the reasonable economic equivalent of the promissory note of the bona
fide offeree notwithstanding any differences in the financial condition of
Xxxxxxx and such bona fide offeree.
(d) If Xxxxxxx fails to pay the purchase price when due, the
Shareholder may elect to (i) rescind the sale, in which case the Shares can be
held or sold, free and clear of this Agreement; or (ii) declare Xxxxxxx in
default, and pursue Xxxxxxx by any and all legal measures and exercise any
remedy available under applicable law.
3. Agreement regarding Certain Actions. Each Shareholder agrees that,
during the Term, such Shareholder shall not, without Xxxxxxx'x consent:
(a) assist any person in connection with any attempt to acquire,
directly or indirectly, record or beneficial ownership of any securities of the
Corporation (including without limitation rights to acquire securities); or
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(b) participate in any transaction in which it or its affiliates may
(i) except with Xxxxxxx, directly or indirectly participate in or encourage the
formation of any "group" within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, which owns or seeks or offers to
acquire record or beneficial ownership of voting securities of the Corporation
(including rights to acquire such voting securities) or which seeks or offers to
affect control of the Corporation, (ii) except with Xxxxxxx, otherwise act alone
or in concert with others to seek to control or influence the management, the
Board of Directors or the policies of the Corporation, (iii) alone or in concert
with others, solicit proxies with respect to any annual or special meeting of
shareholders of the Corporation, or (vi) advise, assist or encourage any other
persons in connection with any of the foregoing; or
(c) vote any Shares in favor of any merger, reorganization,
recapitalization, dissolution or liquidation of the Corporation, or any sale of
assets of the Corporation.
(d) Each Shareholder further agrees that at any annual or special
meeting of the shareholders of the Corporation at which directors are elected,
each Shareholder shall vote all Shares for the election of directors in the
manner directed by Xxxxxxx.
4. Specific Performance. Because of the unique character of the Shares,
each Shareholder acknowledges that Xxxxxxx will be irreparably damaged if this
Agreement is not specifically enforced. If any dispute arises concerning the
sale or disposition of such Shares, each Shareholder agrees that an injunction
shall be issued at Xxxxxxx'x request to restrain any Transfer pending the
determination of such controversy. This Agreement shall be enforceable in a
court of equity by a decree of specific performance. Such remedy shall be
cumulative and not exclusive, shall not be exhausted upon any exercise and shall
be in addition to any other remedy which any party may possess.
5. Representation of shareholders. Except as otherwise indicated on
Schedule A attached hereto, the party signing this Agreement on behalf of each
Shareholder represents and warrants that he or she has sole voting power with
respect to the Shares owned by such Shareholder.
6. Notices, Offers, Acceptances and Rejections.
(a) Any notice required to be given, or any offer, acceptance or
rejection made pursuant to the provisions of this Agreement shall be sufficient
if made in writing and (i) personally delivered, (ii) sent by certified mail,
postage prepaid, (iii) sent via facsimile to the recipient with telephonic
confirmation by the sending party, or (v) sent via nationally recognized
overnight courier. In each case, such notice shall be sent to the address for
each party listed below their signature to this Agreement or to such other
address as any party indicates by notice given pursuant to this Paragraph. A
copy of each notice to Xxxxxxx shall be sent to Xxxxxxxx X. Xxxxx, Esq., Klehr,
Harrison, Xxxxxx, Branzburg & Xxxxxx LLP, 000 X. Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX
00000, facsimile: (000) 000-0000.
(b) Whenever a period of time is to be computed from the date of
receipt of an item of certified mail, such period shall be computed from the
fifth (5th) day following the date of mailing if delivery of the certified mail
item is refused by the party to whom it was directed.
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7. Miscellaneous.
(a) No failure to act upon any default or to exercise any right or
remedy hereunder shall constitute a waiver of such default (unless cured) or any
subsequent default or of such right or remedy.
(b) No amendment or modification of this Agreement shall be
effective unless made in writing and executed by both parties.
(c) This Agreement and the interpretation and enforcement of the
terms hereof shall be governed by the laws (other than the laws of conflict of
laws) of the State of Delaware. The parties consent to subject themselves to the
jurisdiction of the courts of the State of Delaware for all causes of action,
whether in law or equity, which may arise among themselves with respect to this
Agreement. The parties further agree that any suit, action or proceeding shall
be instituted only in the Courts of the State of Delaware or the United States
District Court for the District of Delaware.
(d) This Agreement contains the entire agreement of the parties
hereto, and there are no promises or understandings not herein expressed made as
an inducement to the execution of this instrument or otherwise.
(e) This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
(f) This Agreement shall inure to the benefit of and shall be
legally binding upon the parties hereto and the heirs, successors and assigns of
them and each of them.
(g) This Agreement is exclusively for the benefit of the parties to
it and there are no third parties intended to benefit from it in any way
whatsoever.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Agreement has been executed the day and year
first above written.
XXXXXXX FAMILY INVESTORS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Manager
Address for Notices:
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxx 0000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
SHAREHOLDERS:
THE COTSWOLD FOUNDATION TRUST
By: /s/ I. Wistar Xxxxxx, III Trustee
------------------------------------
I. Wistar Xxxxxx, III, Trustee
ELEVENTH GENERATION, L.P.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, General Partner
/s/ Xxxxxx X. Xxxxxx, as Trustee
------------------------------------
Xxxxxx X. Xxxxxx, as Trustee
f/b/o Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx, as Trustee
------------------------------------
Xxxxxx X. Xxxxxx, as Trustee
f/b/o Xxxxx X. Xxxxxx
/s/ I. Wistar Xxxxxx, III Xxxxxx
------------------------------------
I. Wistar Xxxxxx, III Xxxxxx
[Signature Page to Agreement with Xxxxxxx Family Investors, L.L.C.]
/s/ I. Wistar Xxxxxx, III XXX
------------------------------------
I. Wistar Xxxxxx, III XXX
/s/ I. Wistar Xxxxxx, III
------------------------------------
I. Wistar Xxxxxx, III
/s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx, Trustee
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
f/b/o Xxxxxx X. Xxxxxxxx (5806-8112)
/s/ Xxxxxx X. Xxxxxx, Trustee
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
f/b/o Xxxxx X. Xxxxxxxx (5806-8083)
Address for Notices to all Shareholders:
Attn.: I. Wistar Xxxxxx, III
c/o Boenning & Scattergood, Inc.
0 Xxxxx Xxxxxx, Xxxxx 000
000 Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
[Signature Page to Agreement with Xxxxxxx Family Investors, L.L.C.]
Schedule A
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Shareholder Number of Shares
----------- ----------------
1. The Cotswold Foundation Trust 3,987
2. Eleventh Generation, LP 36,500
3. Xxxxxx X. Xxxxxx, as Trustee f/b/o Xxxxxxx X. Xxxxxx 7,630
4. Xxxxxx X. Xxxxxx, as Trustee f/b/o Xxxxx X. Xxxxxx 2,200
5. I. Wistar Xxxxxx, III Xxxxx 2,400
6. I. Wistar Xxxxxx, III XXX 9,900
7. I. Wistar Xxxxxx, III 22,000
8. Xxxxxx X. Xxxxxx 43,546
9. Xxxxxx X. Xxxxxxxx T/W f/b/o Xxxxxx X. Xxxxxx (5806-8112)* 5,000
10. Xxxxx X. Xxxxxxxx T/W f/b/o Xxxxxx X. Xxxxxx (5806-8083)* 7,000
*Executing party shares voting power of these shares with Pennsylvania Trust Co.
