Exhibit 99.1
Non-Interference Agreement
Pursuant to Paragraph 9.C. of the Stipulation and Agreement of
Compromise, Settlement and Release (the "Settlement") between the parties named
in the action entitled Xxx X. Xxxxxxx, Plaintiff v. Xxxxxxx X. Xxxxx et al.,
Defendants ("Action No. 1") and the parties named in the action entitled The
Franklin Holding Corporation (Delaware), Plaintiff v. Xxx X. Xxxxxxx et al.,
Defendants ("Action No. 2"), it is the desire and intent of the parties to
Actions No. 1 and 2 to end all relationships and courses of conduct among
themselves such as have given rise to Action No. 1 and Action No. 2.
NOW, THEREFORE, in consideration of the Settlement terms and
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged, I, [defendant in Action No. 2] on behalf of myself and on
behalf of the affiliated persons and family members listed on Exhibit 6 of the
Settlement (the "Affiliates") agree from the date hereof until such date, if
any, upon which approval of the Settlement shall be denied and the Settlement
terminated, to comply with [paragraph] 9.C of the Settlement and that I or any
Affiliates shall not, alone or in conjunction with others, directly or
derivatively, or in any representative or individual capacity, interfere with
or seek any relief against X.X. Xxxxx & Company ("SLB. Co") or The Franklin
Holding Corporation (Delaware) or any affiliate thereof (including but no
limited to Excelsior Communications Corporation or Xxxxx Communications, Inc.)
or any or all members of the Board of Directors or executives or employees
thereof, with respect to the business operations, finances or management o
SLB Co., Franklin or any affiliate thereof, or of any other company which now
is or in the future may be directly or indirectly controlled by, Xxxxxxx X.
Xxxxx or any affiliate thereof or any entity of which Xxxxxxx X. Xxxxx is the
chief
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executive officer or Chairman of the Board of Directors, or of which any other
defendant in Action No. 1 or Miles X. Xxxxxx is presently or as of the Effective
Date (as defined in the Settlement) a director, including, but without in any
way limiting the foregoing: engaging in proxy contests; commencing, instigating
or pursuing any lawsuit or other legal, administrative, regulatory or arbitral
proceeding, but excluding commercial transaction disputes against entities,
other than Franklin or its affiliates, not related to the Released Claims (as
defined in the Settlement), that may be brought by Xxxxxx General Corporation or
Highland Management Corporation or any of their affiliates; acting in concert
with any other person in any manner that (but for the beneficial ownership level
provisions of Section 13(a) of the Securities and Exchange Act of 1934) would
require the filing of a Schedule 13D; soliciting any other person to act or
refrain from acting with respect to the business, finances or management of or
compensation or other benefits or consideration paid or provided by any of the
above-described companies or any of its or their affiliates or subsidiaries;
holding or purchasing shares in any such company other than in Franklin; and I
and my Affiliates hereto agree not to be publicly critical of Xxxxxxx X. Xxxxx
or the other management, directors or business associates of Xxxxx in any way
with respect thereto; and will not instigate, cause, request, or suggest that
anyone else shall do so.
I represent that as of the date of this Agreement, neither I
nor any of my Affiliates are aware of any commercial transaction dispute or
claim or facts giving rise to same not related to the Released Claims (as
defined in the Settlement), between myself or any of my Affiliates and any of
the defendants in Action No. 1 or any of their affiliates or any of the members
of the Board of Directors or executives or employees thereof, or Miles X.
Xxxxxx.
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I understand that if I or any of my Affiliates breach any of
the above provisions agreed to herein or any other provision of the Settlement,
the discontinuance of Action No. 2 and release of claims therein provided for by
the Settlement shall be deemed vacated, without prejudice, as against the
breaching party only, so as to permit reinstatement of claims set forth therein
or arising from the matters there asserted against myself and any Affiliate who
is a defendant in Action No. 2 and who is alleged to have breached the
provisions hereof, provided: (i) I and any other Affiliate who is alleged to
have breached this Agreement have been notified in writing of such breach by
certified mail, and unless (ii) I and my Affiliate who is alleged to have
breached this Agreement have failed to move within ten business days of the
mailing of such notification of such breach for, and use my or its best efforts
to obtain, an order of the District Court for the Southern District of New York
staying or otherwise precluding such a reinstatement of claims.
Date:
AGREED TO ON BEHALF OF MYSELF
AND MY AFFILIATES:
_________________________________
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