RIGHT OF FIRST REVIEW AGREEMENT
THIS
RIGHT OF FIRST REVIEW AGREEMENT (this “Agreement”)
is
made as of ________, 2008 by and among Xxxxxxxxxxx Acquisition Corp. (the
“Company”),
Xxxxxxxxxxx Capital, L.P., a Delaware limited partnership (“GCLP”),
Xxxxxxxxxxx Partners, L.P. , a Delaware limited partnership (“GPLP”),
and
Xxxxxxxxxxx Equity Partners, LLC, a [Delaware] limited liability company
(together with GCLP and GPLP, the “Affiliated
Entities”).
RECITALS
WHEREAS,
the Company and the Affiliated Entities share certain officers and directors
(collectively, the “Covered
Officers”);
WHEREAS,
each of the Company and the Affiliated Entities will be simultaneously seeking
and considering opportunities to acquire one or more operating businesses;
and
WHEREAS,
the parties intend by this Agreement to specify the business opportunities
that
the Covered Officers shall be entitled to present to the Company prior to
presenting such opportunities to any of the Affiliated Entities.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1.
Right
of First Review.
(a)
Each
Affiliated Entity hereby acknowledges and agrees that until the Expiration
Date
(as defined in Section 3), the Covered Officers shall be entitled to present
any
investment or acquisition opportunity whose fair market value the Company
reasonably believes is at least $500 million (each, a “Company
Opportunity”)
first
to the Company prior to presenting such opportunity to any Affiliated Entity;
provided, that Company Opportunity shall exclude any opportunity involving
(i)
targets that are focused primarily on real estate, (ii) targets in or related
to
the locomotive or railcar leasing industries or (iii) targets in or related
to
the dry bulk ocean transportation, inland marine transportation and bulk-storage
and transfer terminal industries.
(b)
If
a
majority of the Company’s independent directors determine not to pursue any
Company Opportunity, then the Covered Officers shall be entitled to present
such
business opportunity to any of the Affiliated Entities.
2.
Waiver
of Claims.
Each
Affiliated Entity hereby permanently and irrevocably waives any and all claims
against the Company and the Covered Officers with respect to any Company
Opportunity presented to the Company pursuant to the terms of this
Agreement.
3.
Term.
This
Agreement shall expire upon the earlier of (i) the consummation by the Company
of an acquisition of one or more operating businesses through a merger, capital
stock exchange, asset or stock acquisition, exchangeable share transaction
or
other similar business combination, with one or more target businesses whose
fair market value is equal to at least 80% of the Company’s net assets at the
time of such business combination and (ii) the liquidation of the Company (the
“Expiration
Date”).
4.
Third
Party Beneficiaries.
The
Covered Officers shall be third party beneficiaries of Section 2 of this
Agreement with respect to any acts taken by the Covered Officers in their
capacity as officers or directors of the Company.
5.
Severability.
If one
or more provisions of this Agreement are held to be unenforceable under
applicable law, the parties agree to renegotiate such provision in good faith.
In the event that the parties cannot reach a mutually agreeable and enforceable
replacement for such provision, then (i) such provision shall be excluded from
this Agreement, (ii) the balance of the Agreement shall be interpreted as if
such provision were so excluded and (iii) the balance of the Agreement shall
be
enforceable in accordance with its terms.
6.
Assignment.
This
Agreement shall be binding upon and inure to the benefit of the assigns and
successors of the Company and the Affiliated Entities.
7. Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York applicable to contracts executed in and to be performed
in
that State, including, without limitation, Section 5-1401 of the New York
General Obligations Law.
8.
Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties with respect
to
the subject matter hereof and supersedes and merges all prior agreements or
understandings, whether written or oral.
9.
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will be
deemed an original, but all of which, taken together, shall be deemed one
document
10.
Waiver
of Jury Trial.
Each
party hereto hereby irrevocably and unconditionally waives the right to a trial
by jury in any action, suit, counterclaim or other proceeding (whether based
on
contract, tort or otherwise) arising out of, connected with or relating to
this
Agreement, the transactions contemplated hereby, or the actions of any party
hereto in the negotiation, administration, performance or enforcement
hereof.
[Signatures
follow on next page]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first written above.
XXXXXXXXXXX
ACQUISITION CORP.
By:
______________________________
Name:
Title:
XXXXXXXXXXX
CAPITAL, L.P.
By:
______________________________
Name:
Title:
XXXXXXXXXXX
PARTNERS, L.P.
By:
______________________________
Name:
Title:
XXXXXXXXXXX
EQUITY PARTNERS, LLC
By:
______________________________
Name:
Title:
