VOTING AGREEMENT
Exhibit
99.1
EXECUTION
COPY
THIS
VOTING AGREEMENT (this "Agreement"), dated as
of February 19, 2010, by and between Sun Acquisition Holdings, LLC, a Delaware
limited liability company ("Purchaser") and Xxxxx
X. Xxxxxx, III ("Xx.
Xxxxxx"), Xxxxx Investment Management LLC, a Delaware limited liability
company ("RIM"), Xxxxxx X.
Xxxxx, Dialectic Capital Management, LLC, a Delaware limited liability company,
Dialectic Capital Partners, LP, a Delaware limited partnership, Dialectic
Offshore, Ltd., a Cayman Islands exempted company, Dialectic Antithesis
Partners, LP, a Delaware limited partnership, Dialectic Antithesis Offshore,
Ltd., a Cayman Islands exempted company, Xxxx Xxxxxxxxx and Xxxx Xxxxxxxxx
(collectively, the "Committee", and
individually, each a “Committee
Member”). Defined terms used but not defined herein shall have
the meanings set forth in the Purchase Agreement (as defined
below).
RECITALS:
WHEREAS,
Purchaser intends to submit a proposal (the “Proposal”)to enter
into a Securities Purchase Agreement (the "Purchase Agreement")
with Silicon Storage Technology, Inc., a California corporation (the "Company"), pursuant
to which, among other things, the Company will issue and sell to the Purchaser
and the Purchaser will acquire and purchase (the "Purchase") 45,000
Convertible Preferred Shares (the "Preferred Shares") of
the Company, on the terms and conditions to be set forth in the Purchase
Agreement;
WHEREAS,
as of the date hereof, the members of the Committee are the Beneficial Owners
(as hereinafter defined) of the Existing Shares (as hereinafter defined) of the
common stock, no par value, of Company (the "Company Common
Stock"); and
WHEREAS,
as inducement and a condition to submitting the Proposal, Purchaser has required
the Committee to agree, and the Committee has agreed, to enter into this
Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as
follows:
Section
1. Certain
Definitions . As used herein, the following terms have
the meanings set forth below:
(a) "Affiliate" shall have
the meaning set forth in Rule 12b-2 of the Exchange Act.
(b) "Beneficially Own" or
"Beneficial
Ownership" with respect to any securities means having (i) "beneficial
ownership" of such securities as determined pursuant to Rule 13d-3(a) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") or
(ii) shared
voting and dispositive power over. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person include securities Beneficially Owned by all other Persons
with whom such Person would constitute a "group" within the meaning of Section
13(d) of the Exchange Act with respect to the securities of the same
issuer.
(c) "Existing Shares"
means an aggregate of 13,644,264 shares of the Company Common Stock Beneficially
Owned in the aggregate by the Committee as of the date hereof. For
the purposes of this Agreement, Existing Shares does not include (i) the shares
of the Company Common Stock held by Trust A-4 and reported by Xxxxx X. Xxxxxx
III on Schedule 00X (xxx "X-0 Xxxxxx") or (ii)
409,876 shares held by investment advisory clients of RIM. In the
event of a stock dividend or distribution, or any change in the Company Common
Stock by reason of any stock dividend, split-up, recapitalization, combination,
exchange of share or the like other than pursuant to the transactions
contemplated by the Purchase Agreement, the term "Existing Shares" will
be deemed to refer to and include the shares of the Company Common Stock as well
as all such stock dividends and distributions and any shares into which or for
which any or all of the Securities (as defined below) may be changed or
exchanged and appropriate adjustments shall be made to the terms and provisions
of this Agreement.
(d) "Person" shall mean
and include an individual, a partnership (general or limited), a joint venture,
a corporation, a trust, an estate, a limited liability company, an association,
a joint-stock company, an unincorporated organization or other entity and a
Governmental Authority, government or other department or agency
thereof.
(e) "Securities" means the
Existing Shares together with any shares of the Company Common Stock or other
securities of the Company acquired by Stockholder in any capacity after the date
hereof and prior to the termination of this Agreement whether upon the exercise
of options, warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution,
split-up, recapitalization, combination, exchange of shares or the like, gift,
bequest, inheritance or as a successor in interest in any capacity or
otherwise.
Section
2. Representation and
Warranties of the Committee . Each member of the
Committee represents and warrants to Purchaser as follows:
(a) Ownership of
Shares. The members of the Committee are the Beneficial Owner
of (i) the Existing Shares set forth opposite such Committee member’s name on
Schedule 1, and
(ii) options or other rights to purchase the number of shares of Company Common
Stock set forth opposite such Committee member’s name on Schedule
1. Other than the A-4 Shares, on the date hereof, the Existing
Shares constitute all of the shares of the Company Common Stock owned of record
or Beneficially Owned by Stockholder. There are no outstanding
options or other rights to acquire from any Committee member or obligations of
any Committee Member to sell or to acquire, any shares of the Company Common
Stock. Other than the A-4 Shares and certain shares of the Company
Common Stock held by RIM’s investment advisory clients over which RIM has shared
voting and dispositive power, each Committee Member has sole voting
power and sole power to issue instructions with respect to the matters set forth
in Sections 5
and 6 hereof,
sole power of disposition, sole power of conversion, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares and any other
Securities owned by or hereafter acquired by any Committee member with no
limitations, qualifications or restrictions on such rights subject to applicable
securities laws and the terms of this Agreement.
2
(b) Power; Binding
Agreement. Each Committee Member has the legal capacity, power
and authority to enter into and perform all of each Committee Member’s
obligations under this Agreement. This Agreement has been duly and
validly executed and delivered by the Committee and, assuming due and valid
authorization, execution and delivery thereof by the other parties hereto, is a
valid and binding agreement of each Committee Member enforceable against each
Committee Member in accordance with its terms, except that (i) such enforcement
may be subject to applicable bankruptcy, insolvency or other similar laws, now
or hereafter in effect, affecting creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) No
Conflicts. Except as contemplated by the Purchase Agreement,
and except for the filing of a Schedule 13D under the Exchange Act (a "Schedule 13D") by
each of the Committee and the Purchaser, no filing with, and no permit,
authorization, consent or approval of, any Governmental Authority is necessary
for the execution and delivery of this Agreement by the Committee and the
consummation by the Committee of the transactions contemplated hereby, none of
the execution and delivery of this Agreement by the Committee, the consummation
by the Committee of the transactions contemplated hereby or compliance by the
Committee with any of the provisions hereof shall (i) conflict with or result in
any breach of any organizational documents applicable to each Committee Member,
if any, (ii) result in a violation or breach of, or constitute (with or without
notice or lapse of time or both) a default (or give rise to any third party
right of termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, loan agreement, bond,
mortgage, indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind, to which any Committee
Member is a party or by which any Committee Member or any of his properties or
assets may be bound, or (iii) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to any Committee Member
or any of the Committee Member’s properties or assets.
(d) No
Encumbrance. Except as permitted by this Agreement, the
Existing Shares of the Committee are now and, at all times during the term
hereof, and the Securities will be, held by the Committee, or by a nominee or
custodian for the benefit of a Committee Member, free and clear of all
mortgages, claims, charges, liens, security interests, pledges or options,
proxies, voting trusts or agreements, understandings or arrangements or any
other rights whatsoever ("Encumbrances"),
except for any such Encumbrances arising hereunder.
(e) No Finder's
Fees. No broker, investment banker, financial advisor or other
person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of any Committee
Member.
(f) Reliance by the Purchaser
and the Company. The Committee understands and acknowledges
that each of Purchaser and the Company are entering into the Purchase Agreement
in reliance upon the Committee’s execution and delivery of this
Agreement.
3
Section
3. Purchaser Representations
and Warranties. Purchaser represents and warrants to the
Committee as follows:
(a) Power; Binding
Agreement. Purchaser is a limited liability company duly
organized and validly existing under the laws of the State of Delaware and has
the full legal capacity, power and authority to enter into and perform all of
Purchaser’s respective obligations under this Agreement. The execution, delivery
and performance of this Agreement by Purchaser will not violate any other
agreement to which Purchaser is a party. This Agreement has been duly and
validly executed and delivered by Purchaser and constitutes a valid and binding
agreement of Purchaser, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and other laws relating to
creditors’ rights and to general principles of equity.
(b) No
Conflicts. Except as contemplated by the Purchase Agreement,
and except for the filing of a Schedule 13D by each of the Committee and the
Purchaser, no filing with, and no permit, authorization, consent or approval of,
any Governmental Authority is necessary for the execution and delivery of this
Agreement by Purchaser and the consummation by Purchaser of the transactions
contemplated hereby, none of the execution and delivery of this Agreement by
Purchaser, the consummation by Purchaser of the transactions contemplated hereby
or compliance by Purchaser with any of the provisions hereof shall (i) conflict
with or result in any breach of any organizational documents applicable to
Purchaser, if any, (ii) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind, to which
Purchaser is a party or by which Purchaser or any of its properties or assets
may be bound, or (iii) violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to Purchaser or any of Purchaser’s
properties or assets.
Section
4. Disclosure. The
Committee hereby agrees to permit the Company and Purchaser to publish and
disclose in any document filed with the Securities and Exchange Commission,
including but not limited to a Schedule 13D, and any other disclosure document
which Purchaser determines to be required by law in connection with the
transactions contemplated by the Purchase Agreement, the identity of each
Committee Member and ownership of the Common Stock and the nature of each
Committee Member’s commitments, arrangements and understandings under this
Agreement. Each of the parties hereby agrees that it or he
shall provide each of the other parties hereto reasonable time to review and
approve any document to be filed with the Securities and Exchange Commission
concerning the transactions contemplated by this Agreement prior to the filing
of such documents. Neither Purchaser nor the Committee (nor any of
their respective Affiliates) shall issue any press release or make any other
public announcement with respect to this Agreement or the transactions
contemplated hereby without the prior agreement of the other party, except as
may be required by Law, in which case the party proposing to issue such press
release or make such public announcement shall use its reasonable efforts to
consult in good faith with the other party before making any such public
announcements.
4
Section
5. Transfer and Other
Restrictions.
(a) No
Solicitation. The Committee Members will not, and will cause
their respective Affiliates and each of his and their respective Affiliates,
officers, directors, employees, representatives, consultants, partners,
investment bankers, attorneys, accountants and other agents and representatives
of such Committee Member and other agents (collectively, a Person's "Representatives") not
to (i) solicit, initiate or encourage (including by way of furnishing
information), or take, directly or indirectly, any other action designed to
facilitate, any Acquisition Proposal or (ii) participate in any discussions or
negotiations regarding any Acquisition Proposal. The Committee will
notify Purchaser as promptly as practicable (and in any event within 24 hours)
of any such offers, proposals, inquiries or requests for information relating to
(x) any Acquisition Proposal or (y) the purchase or acquisition by any Person of
Securities including, without limitation, in each case, the terms and conditions
thereof and the identity of the Person making it; provided, however,
any transfer of Existing Shares or Securities between or among Committee Members
shall not constitute or be deemed a breach of this Section 5(a). Each
Committee Member will and will cause its respective Representatives to
immediately cease and cause to be terminated any and all existing activities,
discussions or negotiations, if any, with any parties conducted heretofore with
respect to any Acquisition Proposal. For purposes of this Agreement,
Purchaser is not deemed to be an Affiliate of any Committee
Member. Without limiting the foregoing, Purchaser and the Committee
agree that any violation of the restrictions set forth in this Section 5(a) by
any Representative of a Committee Member or any of his Affiliates, whether or
not such Person is purporting to act on behalf of such Committee Member or any
of his Affiliates, shall constitute a breach by the Committee of this Section
5(a) if, following that violation and while this Agreement is in effect, any
Committee Member enters into discussions with the Person from whom the
Representative encouraged, solicited, initiated or facilitated an Acquisition
Proposal in violation of this Section 5(a).
(b) Certain Prohibited
Transfers. Prior to the termination of this Agreement, each
Committee Member agrees not to, directly or indirectly:
(i) offer
for sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose
of (including by gift), or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of any or
all of the Securities or any interest therein; provided, however, that nothing
herein will limit the ability of any Committee Member to offer for sale, sell,
or transfer any or all of its Securities or any interest therein to another
Committee Member or its Affiliates, or to any Affiliates of such Committee
Member;
(ii) grant
any proxy, power of attorney, deposit any of the Securities into a voting trust
or enter into a voting agreement or arrangement with respect to the Securities
except as provided in this Agreement; or
(iii) take
any other action that would make any representation or warranty of Stockholder
contained herein untrue or incorrect in any material respect or have the effect
of preventing or disabling Stockholder from performing its obligations under
this Agreement.
5
The term
"sale" in this Agreement shall include a "constructive sale" which shall
encompass a short sale with respect to such security, entering into or acquiring
a derivative contract with respect to such security, entering into or acquiring
a futures or forward contract to deliver such security or entering into any
transaction that has substantially the same effect as any of the
foregoing.
For
purposes of clarity, in the event the Purchase Agreement is terminated, nothing
herein shall prevent or prohibit the Committee Members from receiving
consideration for their shares of the Company Common Stock in connection with
any other merger, consolidation, business combination, recapitalization or other
similar transaction involving Purchaser and the Company.
Section
6. Voting of the Company Common
Stock .
(a)
Each Committee Member hereby agrees that, during the period commencing on the
date hereof and continuing until the first to occur of (i) the Closing or
(ii) termination of this Agreement in accordance with its terms, at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of the holders of the Company Common Stock, however called, or in
connection with any written consent of the holders of the Company Common Stock,
however solicited, each Committee Member will appear (or shall cause its
Affiliates to appear) at the meeting or otherwise cause the Securities to be
counted as present thereat for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) all of the Securities having voting
power thereon:
(A) in
favor of adopting the Purchase and the Purchase Agreement; and
(B) except
as otherwise agreed to in writing in advance by Purchaser in its sole
discretion, against the following (other than the transactions contemplated by
the Purchase Agreement): (i) any Acquisition Proposal, (ii) any
change in a majority of the persons who constitute the Company Board, (iii) any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any obligation or agreement of the
Company or Stockholder under the Purchase Agreement or this Agreement,
respectively, or (iv) any action which is intended, or which could reasonably be
expected, to impede, interfere with, materially delay, materially postpone or
materially adversely affect the Closing and the transactions contemplated by the
Purchase Agreement.
(b) Notwithstanding
the foregoing obligations in this
Section 6, each of
the Committee Members hereby agrees and covenants to vote in favor of adopting
the Purchase and the Purchase Agreement and actions required in furtherance
thereof as soon as is reasonably practicable upon receipt by such Committee
Member of the proxy statement from the Company.
No
Committee Member shall enter into any agreement or understanding with any Person
the effect of which would be inconsistent with or violative of any provision
contained in this Section
6.
6
With
respect to the A-4 Shares, Xx. Xxxxxx agrees to take commercially reasonable
efforts, consistent with his duties and responsibilities as an investment
advisor and otherwise consistent with applicable law, to recommend to the
trustee that the trustee vote the A-4 Shares in accordance with this
Agreement.
Section
7. Dismissal of Litigation
. Upon
and subject to the consummation of the transactions contemplated by the Purchase
Agreement, the Committee Members hereby agree and covenant that any Committee
Member who is a party to any litigation against the Company shall enter into and
file stipulations dismissing, or shall seek voluntary dismissal with prejudice
of, all such litigation and releasing all claims against the Company (and their
Affiliates and representatives) and Purchaser hereby agrees to simultaneously
cause the Company to release all claims, and enter into and file stipulations
dismissing, or shall seek voluntary dismissal with prejudice of, any
litigation the Company has against any Committee Member (and their Affiliates
and representatives) in their capacity as shareholders of the
Company.
Section
8. Termination . This
Agreement shall terminate on the earliest to occur of: (a) the six
month anniversary of the date hereof, (b) the Closing, and (c) the
date on which either (i) Purchaser notifies the Committee in writing that it has
withdrawn from pursuing any merger, consolidation, business combination, or
other similar transaction involving the Company or (ii) two Business Days
following the date of receipt by Purchaser of written notice from the Committee
claiming that Purchaser has withdrawn from pursuing any merger, consolidation,
business combination, or other similar transaction involving the Company,
provided that this Agreement shall not terminate if prior to the expiration of
the two Business Day period Purchaser provides written notice to the Committee
disputing the Committee’s claim that it has so withdrawn and evidence that
Purchaser has not so withdrawn. Notwithstanding the foregoing,
Section 9 shall
continue indefinitely and survive any termination pursuant to this
Section
8.
Section
9. Miscellaneous.
(a) Entire
Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, among the
parties, or any of them, with respect to the subject matter hereof.
(b) Successors and
Assigns. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other parties
hereto. This Agreement shall be binding upon, inure to the benefit of
and be enforceable by each party and such party's respective heirs,
beneficiaries, executors, representatives and permitted assigns.
(c) Amendment and
Modification. This Agreement may not be amended, altered,
supplemented or otherwise modified or terminated (other than termination in
accordance with Section 7 hereof)
except upon the execution and delivery of a written agreement executed by the
parties hereto.
7
(d) Notices. All
notices, requests, claims, demands and other communications hereunder shall be
in writing in the English language and will be deemed given (i) on the Business
Day (or if not on a Business Day, on the next Business Day) when it is delivered
in person or sent by facsimile or email (with proof of receipt at the facsimile
number or email address to which it is required to be sent), (ii) on the
Business Day after the day on which it is delivered to a major nationwide
overnight delivery service for overnight delivery, or (iii) on the third
Business Day after the day on which it is mailed by first class mail from within
the United States of America, to the following addresses (or at such other
address for a party as shall be specified in a notice given in accordance with
this
Section 9(d)):
If to
Purchaser, to:
c/o
Cerberus California, LLC
00000 Xxx
Xxxxxxx Xxxx., Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attention: Xxxx
Xxxx
Facsimile:
(000) 000-0000
with
copies to:
Cerberus
Capital Management, L.P.
000 Xxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Facsimile
No: (000) 000-0000
and
Xxxxxxx
Xxxx & Xxxxx LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxxxx
X. Xxxxxxxx
Facsimile: (000)
000-0000
If to the
Committee, to:
Xxxxx Investment Management
LLC
00000 Xxxxx Xxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Suite 800
Attention: Xxxxxx X.
Xxxxx
Facsimile: (000)
000-0000
and
Dialectic Capital Management,
LLC
000 Xxxxx Xxxxxx
00xx
Xxxxx
Xxx Xxxx, XX
Attention: Xxxx
Xxxxxxxxx
Facsimile: (000)
000-0000
and
8
Xxxxx X.
Xxxxxx, III
0000
Xxxxxx Xxxxx
Xxxxxx,
XX 00000
Facsimile: (000)
000-0000
with a
copy to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxx
Xxxxxxx
Facsimile:
(000) 000-0000
(e) Severability. The
provisions of this Agreement shall be severable in the event that any of the
provisions hereof (including any provision within a single section, paragraph or
sentence) are held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, and the remaining provisions shall remain enforceable
to the fullest extent permitted by law. Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without
limitations, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
(f) Specific Performance.
The parties acknowledge that money damages would not be an adequate remedy at
Law if any party fails to perform in any material respect any of its obligations
hereunder and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at Law or in equity, shall be entitled to seek to
compel specific performance of the obligations of any other party under this
Agreement, without the posting of any bond, in accordance with the terms and
conditions of this Agreement and if any action should be brought in equity to
enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at Law. No
remedy shall be exclusive of any other remedy. All available remedies
shall be cumulative.
(g) No
Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, will not constitute a waiver by such party of
its right to exercise any such or other right, power or remedy or to demand such
compliance.
9
(h) No Third Party
Beneficiaries. Except as indicated in Section 2(f), this
Agreement is not intended to confer upon any Person other than the parties
hereto any rights or remedies hereunder.
(i) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Delaware applicable to contracts
executed in and to be performed in that State. All actions arising
out of or relating to this Agreement shall be heard and determined exclusively
in the Delaware Court of Chancery. The parties hereto hereby (i)
submit to the exclusive jurisdiction of the Delaware Court of Chancery for the
purpose of any action arising out of or relating to this Agreement brought by
any party hereto, and (ii) irrevocably waive, and agree not to assert by way of
motion, defense, or otherwise, in any such action, any claim that it is not
subject personally to the jurisdiction of the above-named court, that its
property is exempt or immune from attachment or execution, that the action is
brought in an inconvenient forum, that the venue of the action is improper, or
that this Agreement or the transactions contemplated hereby may not be enforced
in or by the above-named court.
(j) Waiver of Jury
Trial. Each of the parties hereto hereby waives to the fullest
extent permitted by applicable Law any right it may have to a trial by jury with
respect to any litigation directly or indirectly arising out of, under or in
connection with this Agreement or the transactions contemplated
hereby. Each of the parties hereto (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce that foregoing waiver and (b) acknowledges that it and the other
parties hereto have been induced to enter into this Agreement and the
transactions contemplated hereby, as applicable, by, among other things, the
mutual waivers and certifications in this
Section
9(j).
(k) Headings. The
descriptive headings contained in this Agreement are included for convenience of
reference only and shall not affect in any way the meaning or interpretation of
this Agreement.
(l) Expenses. All
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be the responsibility of the party
incurring such expenses; provided, however,
nothing herein shall prevent the parties from seeking reimbursement from the
Company for the costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby.
(m) Reasonable Best
Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement
and the Purchase Agreement. Each party shall promptly consult with
the other and provide any necessary information and material with respect to all
filings made by such party with any Governmental Authority in connection with
this Agreement and the Purchase Agreement and the transactions contemplated
hereby and thereby.
10
(n) Further
Assurances. From time to time, at any other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this
Agreement.
(o) Counterparts;
Execution. This Agreement may be executed and delivered
(including by facsimile transmission) in two 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. Signatures of the parties
transmitted by facsimile, PDF or other electronic file shall be deemed to be
their original signatures for all purposes and the exchange of copies of this
Agreement and of signature pages by facsimile transmission, PDF or other
electronic file shall constitute effective execution and delivery of this
Agreement as to the parties and may be used in lieu of the original Agreement
for all purposes. At the request of any party hereto, all parties
hereto agree to execute an original of this Agreement as well as any facsimile,
telecopy, PDF or other reproduction hereof.
[No
further text appears; signature pages follow]
11
IN
WITNESS WHEREOF, Purchaser and the Stockholder have caused this Agreement to be
duly executed as of the day and year first written above.
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PURCHASER:
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SUN
ACQUISITION HOLDINGS LLC
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By:
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/s/ Xxxx X. Xxxx | ||
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Name:
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Xxxx X. Xxxx | ||
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Title:
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Authorized Signatory | ||
| THE COMMITTEE: | |||
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XXXXX
INVESTMENT MANAGEMENT LLC
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By:
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/s/ Xxxxxx X. Xxxxx | ||
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Name:
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Xxxxxx
X. Xxxxx
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Title:
|
Managing
Member
|
||
| /s/ Xxxxxx X. Xxxxx | |||
|
XXXXXX
X. XXXXX
|
|||
|
DIALECTIC
CAPITAL PARTNERS LP
|
|||
|
By: Dialectic
Capital, LLC, its general partner
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxxx | ||
|
Name:
|
Xxxx
Xxxxxxxxx
|
||
|
Title:
|
Managing
Member
|
||
|
DIALECTIC
OFFSHORE, LTD.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxxx | ||
|
Name:
|
Xxxx
Xxxxxxxxx
|
||
|
Title:
|
Director
|
||
|
DIALECTIC
ANTITHESIS PARTNERS, LP
By: Dialectic
Capital, LLC, its general partner
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxxx | ||
|
Name:
|
Xxxx
Xxxxxxxxx
|
||
|
Title:
|
Managing
Member
|
||
|
DIALECTIC
ANTITHESIS OFFSHORE, LTD.
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxxx | ||
|
Name:
|
Xxxx
Xxxxxxxxx
|
||
|
Title:
|
Director
|
||
|
DIALECTIC
CAPITAL MANAGEMENT, LLC
|
|||
|
By:
|
/s/ Xxxx Xxxxxxxxx | ||
|
Name:
|
Xxxx
Xxxxxxxxx
|
||
|
Title:
|
Managing
Member
|
||
| /s/ Xxxx Xxxxxxxxx | |||
|
XXXX
XXXXXXXXX
|
|||
| /s/ Xxxx Xxxxxxxxx | |||
|
XXXX
XXXXXXXXX
|
|||
|
/s/
Xxxxx X. Xxxxxx, III
|
|||
|
XXXXX
X. XXXXXX, III
|
|||
SCHEDULE
I
|
Committee Member
|
# of Shares Beneficially
Owned
|
|
|
Xxxxx
Investment Management, LLC
|
2,715,489
|
|
|
Xxxxxx
X. Xxxxx
|
2,715,489
|
|
|
Dialectic
Capital Partners LP
|
795,442
|
|
|
Dialectic
Offshore, Ltd.
|
544,739
|
|
|
Dialectic
Antithesis Partners, LP
|
2,172,935
|
|
|
Dialectic
Antithesis Offshore, Ltd.
|
3,023,790
|
|
|
Dialectic
Capital Management, LLC
|
6,536,906
|
|
|
Xxxx
Xxxxxxxxx
|
6,536,906
|
|
|
Xxxx
Xxxxxxxxx
|
6,536,906
|
|
|
Xxxxx
X. Xxxxxx, III
|
6,657,093
|
|
Other
than as provided herein, no Committee Member holds any options or other rights
to purchase shares of Company Common Stock.
