Exhibit 99.2
AGREEMENT
AGREEMENT made as of this 31st day of January, 2003, by and between
BRESLER FAMILY INVESTORS, L.L.C., with an address of 00000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx 0000, Xxxxxxxxx, XX 00000 ("Xxxxxxx") and Fleur X. Xxxxxxx, with an
address of 10401 Grosvenor Place, Apartment 1703, Rockville, MD 20852(the
"Shareholder").
Background
The Shareholder is the record owner of 143,977 shares ("Shares") of the
voting common stock, par value $0.01 per share (the "Common Stock"), of Xxxxxxx
& Xxxxxx, Inc. (the "Corporation"). Xxxxxxx and the Shareholder have agreed that
the Shareholder will xxxxx Xxxxxxx certain rights with respect to Shares held by
the Shareholder, on the terms and conditions set forth herein.
NOW, THEREFORE, in exchange for the mutual covenants and agreements
contained herein, the payment of $71,988.50 by Bresler to the 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), the
Shareholder decides to sell, gift, or otherwise dispose of Shares (including
both Shares held by the Shareholder on the date hereof and any Shares hereafter
acquired by the Shareholder) (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 Shareholder 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, the Shareholder may Transfer all
or any part of his or her Shares to any one or more of the Shareholder's spouse
and/or lineal descendants or any partnership or trust for the 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 the Shareholder,
without complying with the provisions of this Agreement, 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 Shareholder
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 the Shareholder 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
Shareholder 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
Shareholder 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 (a) rescind the sale, in which case the Shares can be
held or sold, free and clear of this Agreement; or (b) 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. The Shareholder agrees that,
during the Term, the 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 (the "Exchange Act"), 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. The Shareholder further agrees that at any annual or
special meeting of the shareholders of the Corporation at which directors are
elected, the 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,
the 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, the 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. 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 personally delivered or sent by certified mail, postage
prepaid, to the addresses set forth in the heading of this Agreement or to such
other address as either party indicates by notice given pursuant to this
Paragraph. Notice may be sent by facsimile to Xxxxxxx at (000) 000-0000. A copy
of each notice to Xxxxxxx shall be sent to Xxxxxxxx X. Xxxxx, Esq., Klehr,
Harrison, Xxxxxx, Xxxxxxxxx & 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.
6. 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.
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(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 instrument 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.
IN WITNESS WHEREOF, this instrument has been executed the day and year
first above written.
SHAREHOLDER:
/s/ Fleur X. Xxxxxxx
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Fleur X. Xxxxxxx
XXXXXXX FAMILY INVESTMENTS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Manager
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