AGREEMENT
AGREEMENT
THIS
AGREEMENT, dated as of March 9, 2007 (the "Agreement"),
is by
and among Wynnefield Partners Small Cap Value, L.P., a Delaware limited
partnership ("Wynnefield
Small Cap Value"),
Wynnefield Small Cap Value Offshore Fund, Ltd., a company formed under the
laws
of the Cayman Islands ("Wynnefield
Small Cap Value Offshore"),
Wynnefield Partners Small Cap Value, L.P.I, a Delaware limited partnership
("Wynnefield
Partners Small Cap Value"),
Channel Partnership II, L.P., a New York limited partnership ("Channel"),
Wynnefield Capital Management, LLC, a Delaware limited liability company
("Wynnefield
Capital Management"),
Wynnefield Capital, Inc., a Delaware corporation ("Wynnefield
Capital"),
Xxxxxx Xxxx ("Obus")
and
Xxxxxx Xxxxxx ("Xxxxxx")
(Wynnefield Small Cap Value, Wynnefield Small Cap Value Offshore, Wynnefield
Partners Small Cap Value, Channel, Wynnefield Capital Management, Wynnefield
Capital, Obus and Xxxxxx are referred to herein collectively as the
"Wynnefield
Group"),
North
Star Partners, L.P., a Delaware limited partnership ("North Star"), North Star
Partners II, L.P., a Delaware limited partnership ("North
Star II"),
NS
Advisors, LLC, a Connecticut limited liability company ("NS
Advisors"),
Xxxxxx X. Xxxxx ("Xxxxx")
(North
Star, North Star II, NS Advisors and Xxxxx are referred to herein collectively
as the "North
Star Group")
and
Cornell Companies, Inc., a Delaware corporation (the "Company"),
who
agree as follows:
WHEREAS,
on December 6, 2006, the Wynnefield Group and the North Star Group, along with
certain other parties (collectively, the "13D
Filers"),
filed
a Schedule 13D (the "Filers'
13D")
with
the Securities and Exchange Commission ("SEC")
in
which the 13D Filers disclaimed acting as a "group" and disclosed that they
intended to vote against the transaction described in the previously announced
Agreement and Plan of Merger entered into by the Company with The Veritas
Capital Fund III, L.P. (the "Merger");
and
WHEREAS,
on December 6, 2006, the 13D Filers sent a letter to the Company's Board of
Directors (the "Board
of Directors")
in
which it asserted, among other things, that (i) the Company's Board of Directors
failed in its fiduciary responsibility by recommending the Merger to the
Company's stockholders; (ii) the consideration for the Merger did not reflect
the true value of the Company; (iii) the preliminary proxy statement filed
by
the Company withheld material information from the Company's stockholders
regarding the Merger; and (iv) the evaluation process conducted by the Company's
Board of Directors was flawed; and
WHEREAS,
following the vote of the stockholders of the Company at which the Merger was
not approved by the Company's stockholders, the Wynnefield Group and the North
Star Group advised the Company that they were seeking two seats on the Company's
Board of Directors and requested that the Company nominate Xxxxx and Xxx Xxxxxx
("Xxxxxx")
to
stand for election to the Company's Board of Directors at the Company's 2007
Annual Meeting of Stockholders (the "2007
Annual Meeting");
and
WHEREAS,
the Company believed that if it failed to comply with the requests from the
Wynnefield Group and the North Star Group there was a credible risk that the
Wynnefield Group and the North Star Group would propose a slate of directors
to
the Company's stockholders and solicit proxies in support of their election
(the
"Proxy
Contest");
and
WHEREAS,
on March 8, 2007, the Board of Directors elected Xxxxx to fill a vacancy on
its
Board of Directors and has agreed to fill the remaining vacancy on the Board
of
Directors with Xxxxxx at the next meeting of the Board of Directors;
and
WHEREAS,
the Company, the Wynnefield Group and the North Star Group have determined
that
their interests and those of the Company's stockholders would best be served
by
(i) avoiding the substantial expense and disruption that would be expected
to result from the Proxy Contest and potential litigation associated therewith,
(ii) nominating Xxxxx and Xxxxxx for election as directors of the Company
and (iii) the receipt of other agreements, covenants, rights and benefits
as provided herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual agreements and
representations set forth herein, intending to be legally bound hereby, the
parties hereby agree as follows:
1. Board
Representation; Related Matters.
(a) At
the next meeting of the Board of Directors, the Board of Directors will take
all
necessary action to fill the existing vacancy on the Board of Directors with
Xxxxxx.
(b) Subject
to the execution of this Agreement, the Board of Directors has approved a slate
of nine nominees to stand for election at the 2007 Annual Meeting, which slate
includes Xxxxx and Xxxxxx, or replacements or substitutes for such persons
as
contemplated herein. The other nominees are Xxxxx X. Xxxxx, Xxxxxxx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx Xxx Xxxxx, D. Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and Xxxx
Xxxxxxx (collectively, with Xxxxx and Xxxxxx, the "2007
Nominees").
The
Company will recommend that its stockholders vote in favor of the election
of
the 2007 Nominees and will solicit proxies for their election.
(c) Xxxxx
and Xxxxxx will enjoy the same rights, privileges, powers and duties as all
other directors, and receive the same compensation and benefits as all other
directors, including indemnification rights, exculpation protections associated
with service on the Board of Directors and directors' and officers' liability
insurance to the extent set forth in existing or future policies for directors
generally. Xxxxx and Xxxxxx will be reimbursed for expenses incurred in
connection with service on the Board of Directors to the same extent and on
the
same basis as all other directors.
(d) Each
of the Wynnefield Group and the North Star Group and their respective Affiliates
and Associates shall support the 2007 Nominees and recommend that the Company's
stockholders vote for the election of each of the 2007 Nominees at the 2007
Annual Meeting, and the Wynnefield Group and the North Star Group shall vote,
and shall cause their Affiliates and Associates to vote, all Voting Securities
(as such term is hereinafter defined) which they are entitled to vote at the
2007 Annual Meeting in favor of the election of each of the 2007 Nominees.
Each
of the Wynnefield Group and the North Star Group and their respective Affiliates
and Associates shall not, directly or indirectly, sell, transfer or otherwise
dispose of, or pledge, hypothecate or otherwise encumber, or transfer or convey
in any manner any voting rights with respect to, any Voting Securities
beneficially owned by any of them at the time of the execution of this Agreement
until after the date which is the record date fixed by the Board of Directors
for determining the Company's stockholders entitled to vote at the 2007 Annual
Meeting.
--1--
(e) If
(i) Xxxxxx shall be unable or unwilling to serve as a director or nominee
for any reason prior to his election as a director in accordance with
Section 1(a) or (b) above or, prior to the Termination Date, shall cease to
be a member of the Board of Directors by reason of his death, disability or
resignation, or (ii) the Wynnefield Group determines, in its sole
discretion, to replace Xxxxxx as a nominee or a director, then the Wynnefield
Group shall be entitled to designate one or more other persons reasonably
acceptable to a majority of the members of the entire Board of Directors, and
any such person shall be nominated or elected to the Board of Directors, as
the
case may be, in substitution for Xxxxxx (the "Wynnefield
Alternative Nominee").
If
(i) Xxxxx shall be unable or unwilling to serve as a director or nominee
for any reason prior to his election as a director in accordance with
Section 1(b) above or, prior to the Termination Date, shall cease to be a
member of the Board of Directors by reason of his death, disability or
resignation, or (ii) the North Star Group determines, in its sole
discretion, to replace Xxxxx as a nominee or a director, then the North Star
Group shall be entitled to designate one or more other persons reasonably
acceptable to a majority of the members of the entire Board of Directors, and
any such person shall be appointed, nominated or elected to the Board of
Directors, as the case may be, in substitution for Xxxxx (the "North
Star Alternative Nominee").
(f) Xxxxx
has been appointed to the Compensation Committee of the Board of Directors,
in
which capacity he or the North Star Alternative Nominee shall serve at all
times
prior to the Termination Date. Upon his election to the Board of Directors,
Xxxxxx or the Wynnefield Alternative Nominee shall be appointed to the
Nominating/Corporate Governance Committee of the Board of Directors, in which
capacity he or the Wynnefield Alternative Nominee shall serve at all times
prior
to the Termination Date. Provided,
however,
that
neither Xxxxx nor Xxxxxx nor the Wynnefield Alternative Nominee nor the North
Star Alternative Nominee shall be appointed to any committee of the Board of
Directors if counsel to the Company advises the Board of Directors that the
appointment of such director to any such committee of the Board of Directors
would violate applicable law or applicable stock exchange rules or regulations.
Any additional committee assignments shall be in the discretion of the Board
of
Directors. Except in connection with any election of directors, including at
the
2007 Annual Meeting of Stockholders of the Company, and to the extent otherwise
expressly required by applicable law, until the Termination Date, the Wynnefield
Group and the North Star Group shall, at their discretion, either (i) vote
and
cause their Affiliates and Associates to vote, all Voting Securities which
they
are entitled to vote in accordance with the Board of Director's recommendation
with respect to any stockholder proposals, whether made pursuant to
Rule 14a-8 or Rule 14a-4 under the Securities Exchange Act of 1934, as
amended (the "Exchange
Act"),
or
otherwise, or (ii) vote, and cause their Affiliates and Associates to vote,
all
Voting Securities which they are entitled to vote proportionately with the
vote
of all other stockholders. Prior to the Termination Date, in all elections
of
directors to the Board of Directors, the Wynnefield Group and the North Star
Group each agree to vote, and shall cause their Affiliates and Associates to
vote, all Voting Securities which they are entitled to vote, in accordance
with
the recommendation of the Board of Directors.
--2--
2. Covenants
of the Wynnefield Group and the North Star Group
(a) The
Wynnefield Group and the North Star Group severally agree that, during the
period commencing on the date of execution of this Agreement and ending on
the
Termination Date, without the prior written consent of the Board of Directors
as
specifically expressed in a resolution adopted by a majority of the entire
membership of the Board of Directors, neither the Wynnefield Group nor the
North
Star Group, nor any of their respective Affiliates or Associates nor any Person
acting at their direction or on their behalf, will, directly or
indirectly:
(i) with
respect to the Company or its Voting Securities, make, engage or in any way
participate in, directly or indirectly, any "solicitation" (as such term is
used
in the proxy rules of the SEC) of proxies or consents (whether or not relating
to the election or removal of directors); seek to advise, encourage or influence
any Person with respect to the voting of any Voting Securities (other than
Affiliates or Associates); initiate, propose or otherwise "solicit" (as such
term is used in the proxy rules of the SEC) stockholders of the Company for
the
approval of shareholder proposals whether made pursuant to Rule 14a-8 or Rule
14a-4 under the Exchange Act, or otherwise, or cause or encourage or attempt
to
cause or encourage any other Person to initiate any such stockholder proposal;
otherwise communicate with the Company's stockholders or others pursuant to
Rule
14a-1(l)(2)(iv) under the Exchange Act; or participate in, or take any action
pursuant to, any "stockholder access" proposal which may be adopted by the
SEC,
whether in accordance with previously proposed Rule 14a-11 or
otherwise;
(ii) seek,
propose, or make any statement with respect to any merger, consolidation,
business combination, tender or exchange offer, sale or purchase of assets,
sale
or purchase of securities, dissolution, liquidation, restructuring,
recapitalization or similar transactions of or involving the Company or any
of
its Affiliates or Associates;
(iii) form,
join or in any way participate in a "group" (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to any Voting Securities (except
as
may be deemed to exist between the Wynnefield Group and the North Star Group
together with the Insight Reporting Person (as defined in the Filers'
13D));
(iv) deposit
any Voting Securities in any voting trust or subject any Voting Securities
to
any arrangement or agreement with respect to the voting of any Voting
Securities;
--3--
(v) act
alone or in concert with others to control or seek to control, or influence
or
seek to influence, the management, the Board of Directors or policies of the
Company;
(vi) make
any demand or request for any Stockholder List Information, or any related
material, or for the books and records of the Company or its
Affiliates;
(vii) except
as specifically and expressly set forth in this Agreement, seek, alone or in
concert with others, election or appointment to or representation on, or
nominate or propose the nomination of any candidate to, the Board of Directors,
or seek the removal of any member of the Board of Directors;
(viii) have
any discussions or communications, or enter into any arrangements, understanding
or agreements (whether written or oral) with, or advise, finance, assist or
encourage, any other Person in connection with any of the foregoing (including
by granting any waiver to any legal, financial, public relations, proxy
solicitation or other firm that represented or was engaged by them, their
Affiliates, Associates or any of their legal counsel with respect to the
Company, which waiver would permit any such firm to represent any Person in
connection with matters relating to the Company), or make any investment in
or
enter into any arrangement with any other Person that engages, or offers or
proposes to engage, in any of the foregoing;
(ix) make
or disclose any statement regarding any intent, purpose, plan or proposal with
respect to the Board, the Company, its management, policies or affairs or any
of
its securities or assets or this Agreement that is inconsistent with the
provisions of this Agreement, including any intent, purpose, plan or proposal
that is conditioned on, or would require waiver, amendment, nullification or
invalidation of, any provision of this Agreement or take any action that could
require the Company to make any public disclosure relating to any such intent,
purpose, plan, proposal or condition; or
(x) otherwise
take, or solicit, cause or encourage others to take, any action inconsistent
with any of the foregoing.
(b) Notwithstanding
any other provision of this Agreement, Xxxxx and Xxxxxx, during the term of
their service as a director of the Company, shall not be prohibited in any
way
from acting as a director and complying with his fiduciary duties as a director
of the Company.
3. Sale
of Voting Securities.
From
and after the date following the record date for determining stockholders
entitled to vote at the 2007 Annual Meeting and until the Termination Date,
the
Wynnefield Group and the North Star Group severally agree that each such group
and their respective Affiliates or Associates will not engage in any sale,
transfer or other disposition of Voting Securities other than (i) open
market sales not exceeding in any one trading day 20% of the Company's average
daily volume for the previous 30 trading days, (ii) privately negotiated
sales, transfers or dispositions, provided that the transferee immediately
following any such transaction would not, together with such transferee's
Affiliates and Associates, beneficially own in the aggregate 2% or more of
the
Company's outstanding Voting Securities or (iii) any other sales, transfers
or dispositions with the prior approval of the majority of the entire Board
of
Directors.
--4--
4. Representations
and Warranties of the Wynnefield Group and the North Star Group.
(a) Each
member of the Wynnefield Group and the North Star Group which is not a natural
person severally represents and warrants on its own behalf that it has the
corporate or other power and authority to execute, deliver and carry out the
provisions of this Agreement and to consummate the transactions contemplated
hereby.
(b) Each
member of the Wynnefield Group and the North Star Group which is not a natural
person severally represents and warrants on its own behalf that this Agreement
has been duly and validly authorized, executed, and delivered by such member
and
constitutes a valid and binding obligation of such member, and is enforceable
against it in accordance with its terms.
(c) Each
member of the Wynnefield Group and the North Star Group who is a natural person
severally represents and warrants on his own behalf that he has the power and
authority to execute, deliver and carry out the provisions of this Agreement
and
to consummate the transactions contemplated hereby.
(d) Each
member of the Wynnefield Group and the North Star Group who is a natural person
severally represents and warrants on his own behalf that this Agreement has
been
duly executed and delivered, constitutes his valid and binding obligation,
and
is enforceable against him in accordance with its terms.
5. Representations
and Warranties of the Company.
(a) The
Company represents and warrants that it has the corporate power and authority
to
execute, deliver and carry out the terms and provisions of this Agreement and
to
consummate the transactions contemplated hereby.
(b) The
Company represents and warrants that this Agreement has been duly and validly
authorized, executed and delivered by the Company and constitutes a valid and
binding agreement of the Company, enforceable against it in accordance with
its
terms.
6. Termination
Date.
The
Termination Date ("Termination
Date")
shall
be the earlier of March 9, 2008 or the date which is ten days prior to the
last
date on which a stockholder may give notice to the Company of its intention
to
submit a proposal to the Company's stockholders for action at the 2008 Annual
Meeting of Stockholders.
7. Press
Release.
Upon
execution of this Agreement, the Company, the Wynnefield Group and the North
Star Group shall issue a joint press release substantially in the form attached
hereto as Exhibit 1 with such changes as may be mutually agreed to by the
Company and the Wynnefield Group and the North Star Group. None of the parties
hereto will make any public statements other than as required by law and none
of
such statements shall be inconsistent with, or are otherwise contrary to, the
statements in the press release. Nothing shall preclude or prevent either the
Company or the Wynnefield Group or the North Star Group from making public
statements that are neither contrary to nor inconsistent with the statements
in
the press release, provided
that all
such public statements shall be in compliance with applicable securities laws
and consistent with any such party's fiduciary duties.
--5--
8. Specific
Performance.
The
Company, the Wynnefield Group and the North Star Group acknowledge and agree
that the other parties would be irreparably injured by a breach of this
Agreement by such party and that money damages are an inadequate remedy for
an
actual or threatened breach of this Agreement because of the difficulty of
ascertaining the amount of damage that will be suffered in the event that this
Agreement is breached. Accordingly, the Company, the Wynnefield Group and the
North Star Group agree to the granting of specific performance of this Agreement
and injunctive or other equitable relief as a remedy for any such breach,
without proof of actual damages, and further agree to waive any requirement
for
the securing or posting of any bond in connection with any such remedy. Such
remedy shall not be deemed to be the exclusive remedy for a breach of this
Agreement, but shall be in addition to all other remedies available at law
or
equity. In the event of litigation relating to this Agreement, if a court of
competent jurisdiction determines in a final, non-appealable order that this
Agreement has been breached by either party, then the breaching party will
reimburse the other party for its costs and expenses (including, without
limitation, reasonable legal fees and expenses) incurred in connection with
all
such litigation.
9. No
Waiver.
Any
waiver by any party hereto of a breach of any provision of this Agreement shall
not operate as or be construed to be a waiver of any other breach of such
provision or of any breach of any other provision of this Agreement. The failure
of a party hereto to insist upon strict adherence to any term of this Agreement
on one or more occasions shall not be considered a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that term or any
other term of this Agreement.
10. Certain
Definitions.
As used
in this Agreement, (a) the term "Person"
as used
herein shall be interpreted broadly to include, among others, any individual,
partnership, corporation, limited liability company, joint venture, group,
syndicate, trust, government or agency thereof, or any other association or
entity; (b) the terms "Affiliates"
and
"Associates"
shall
have the meanings set forth in Rule 12b-2 under the Exchange Act and shall
include persons who become Affiliates or Associates of any Person subsequent
to
the date hereof; (c) the term "Voting
Securities"
shall
mean the shares of Common Stock and any other securities of the Company entitled
to vote in the election of directors, or securities convertible into, or
exercisable or exchangeable for, such Common Stock or other securities, whether
or not subject to the passage of time or other contingencies; (d) the
Company and each of the members of the 13D Filers will be referred to herein
individually as a "party" and collectively as "parties"; and (e) the term
"business
day"
means
any day other than a Saturday, Sunday or a day on which banks in New York City
are authorized or obligated by applicable law or executive order to close or
are
otherwise generally closed.
--6--
11. Severability.
If any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction or other authority 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. Upon such a determination, the parties shall negotiate
in good faith to modify this Agreement so as to effect the original intent
of
the parties as closely as possible in an acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated
to
the fullest extent possible.
12. Successors
and Assigns.
All the
terms and provisions of this Agreement shall inure to the benefit of and shall
be enforceable by the successor and assigns of the parties hereto.
13. Third
Party Beneficiaries.
Nothing
contained in this Agreement shall create any rights in, or be deemed to have
been executed for the benefit of, any Person or entity that is not a party
hereto or a successor or permitted assign of such a party.
14. Survival
of Representations.
All
representations, warranties and agreements made by the parties in this Agreement
or pursuant hereto shall survive the date hereof.
15. Entire
Agreement; Amendments.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and is not intended to confer upon any person other than
the parties hereto any rights or remedies hereunder. This Agreement may be
amended only by a written instrument duly executed by the parties hereto or
their respective successors or assigns.
16. Headings.
The
section headings contained in this Agreement are for reference purposes only
and
shall not effect in any way the meaning or interpretation of this
Agreement.
17. Notices.
All
notices, requests, claims, demands and other communications hereunder shall
be
in writing and shall be given (and shall be deemed to have been duly given
if so
given) by hand delivery, cable, telecopy (confirmed in writing) or telex, or
by
mail (registered or certified, postage prepaid, return receipt requested) to
the
respective parties hereto as follows:
If
to the
Company:
Cornell
Companies, Inc.
Attention:
Xx. Xxxxx X. Xxxxx, Chief Executive Officer
Telecopier:
(000) 000-0000
with
a
copy to:
Xxxxxxx
X. Xxxxxxxxx, Esq.
Bracewell
& Xxxxxxxx LLP
South
Tower Pennzoil Place
000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxx 00000
Telecopier:
(000) 000-0000
--7--
If
to the
members of the Wynnefield Group:
c/o
Wynnefield Capital, Inc.
Attention:
Mr. Xxxxxx Xxxx
Telecopier:
(000) 000-0000
with
a
copy to:
Xxxxxxx
X. Xxxxxxx, Esq.
Xxxx
Xxxxxxx, P.C.
1350
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopier:
(000) 000-0000
If
to the
members of the North Star Group
c/o
North
Star Partners, L.P.
000
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Mr. Xxxxxx Xxxxx
Telecopier:
(000) 000-0000
with
a
copy to:
Xxxxxxxxx
Xxxxxxx, LLP
The
Met
Life Building
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxx, Esq.
Telecopier:
(000) 000-0000
or
to
such other address as the person to whom notice is given may have previously
furnished to the others in writing in the manner set forth above.
18. Governing
Law.
This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York applicable to contracts made and performed in
such
State, without giving effect to choice of law principles thereof, that would
cause the application of the laws of any other jurisdiction, provided,
however,
that
any issue related to the duties (and compliance therewith) of any member of
the
Board of Directors as such shall be governed by the laws of Delaware, including
the Delaware General Corporation Law. Nothing in this Agreement shall affect
the
obligation of any party to testify truthfully if called to testify under
oath.
19. Submission
to Jurisdiction.
Each of
the parties irrevocably submits to the exclusive jurisdiction and service and
venue in any federal or state court sitting in the State of New York for the
purposes of any action, suit or proceeding relating to this Agreement. Each
of
the parties irrevocably and unconditionally waives any objections to the laying
of venue of any action, suit or proceeding relating to this Agreement in any
federal or state court sitting in the State of New York, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in
any
such court that any such action, suit or proceeding brought in any such court
has been brought in an inconvenient forum.
--8--
20. Counterparts;
Facsimile.
This
Agreement may be executed in counterparts, including by facsimile, each of
which
shall be an original, but each of which together shall constitute one and the
same Agreement.
21. Wynnefield
Representative and North Star Representative.
Each
member of the Wynnefield Group hereby irrevocably appoints Obus as
such
member's attorney-in-fact and representative (the "Wynnefield
Representative"),
in
such member's place and stead, to do any and all things and to execute any
and
all documents and give and receive any and all notices or instructions in
connection with this Agreement and the transactions contemplated hereby. The
Company shall be entitled to rely, as being binding on each member of the
Wynnefield Group, upon any action taken by the Wynnefield Representative or
upon
any document, notice, instruction or other writing given or executed by the
Wynnefield Representative. Each of the parties hereto acknowledges and agrees
that the Wynnefield Representative shall have no liability to, and shall not
be
liable for any losses or liabilities of, any party hereto in connection with
any
obligations or actions of the Wynnefield Representative under this Agreement
in
his or her capacity as the Wynnefield Representative, except to the extent
such
losses or liabilities are proven to be the direct result of willful misconduct
by the Wynnefield Representative in connection with the performance of his
or
her obligations hereunder. Each member of the Wynnefield Group agrees that,
until the Termination Date, in the event and at the time the Wynnefield
Representative appointed hereby shall no longer be the Wynnefield Representative
for any reason, he, she or it will execute a power of attorney appointing a
successor Wynnefield Representative as his, her or its attorney-in-fact with
the
same authority and power as granted under this Section 21.
Each
member of the North Star Group hereby irrevocably appoints Xxxxx as
such
member's attorney-in-fact and representative (the "North
Star Representative"),
in
such member's place and stead, to do any and all things and to execute any
and
all documents and give and receive any and all notices or instructions in
connection with this Agreement and the transactions contemplated hereby. The
Company shall be entitled to rely, as being binding on each member of the North
Star Group, upon any action taken by the North Star Representative or upon
any
document, notice, instruction or other writing given or executed by the North
Star Representative. Each of the parties hereto acknowledges and agrees that
the
North Star Representative shall have no liability to, and shall not be liable
for any losses or liabilities of, any party hereto in connection with any
obligations or actions of the North Star Representative under this Agreement
in
his or her capacity as the North Star Representative, except to the extent
such
losses or liabilities are proven to be the direct result of willful misconduct
by the North Star Representative in connection with the performance of his
or
her obligations hereunder. Each member of the North Star Group agrees that,
until the Termination Date, in the event and at the time the North Star
Representative appointed hereby shall no longer be the North Star Representative
for any reason, he, she or it will execute a power of attorney appointing a
successor North Star Representative as his, her or its attorney-in-fact with
the
same authority and power as granted under this Section 21.
--9--
22. Further
Actions.
Upon
and subject to the terms of this Agreement, each of the parties hereto agrees
to
use its or his reasonable best efforts to cause to be taken, all actions, and
to
do, or cause to be done, and to assist and cooperate with the other party in
doing, all things necessary, proper or advisable to consummate or make
effective, in the most expeditious manner practicable, the matters contemplated
by this Agreement.
[Next
page is a signature page.]
--10--
IN
WITNESS WHEREOF, each of the parties to this Agreement have caused this
Agreement to be duly executed as of the day and year first above
written.
|
CORNELL
COMPANIES, INC.
By:
/s/ Xxxxx X. Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
CEO
WYNNEFIELD
PARTNERS SMALL CAP VALUE, L.P.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
Managing Member
WYNNEFIELD
SMALL CAP VALUE OFFSHORE FUND, LTD.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
Managing Member
WYNNEFIELD
PARTNERS SMALL CAP VALUE, LP. I
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
Managing Member
CHANNEL
PARTNERSHIP II, L.P.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
General Partner
|
--11--
|
WYNNEFIELD
CAPITAL MANAGEMENT, LLC
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
Managing Member
WYNNEFIELD
CAPITAL, INC.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
President
XXXXXX
XXXX /s/ Xxxxxx Xxxx
XXXXXX
XXXXXX /s/ Xxxxxx Xxxxxx
NORTH
STAR PARTNERS, L.P.
By:
/s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member of General Partner
NORTH
STAR PARTNERS II, L.P.
By:
/s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member of General Partner
NS
ADVISORS, LLC
By:
/s/ Xxxxxx X. Xxxxx
Name:
Xxxxxx X. Xxxxx
Title:
Managing Member
XXXXXX
X. XXXXX /s/ Xxxxxx X. Xxxxx
|
--12--
