XXXXXX X. XXXX
May 20, 2008
Arrow Offshore Ltd.
Arrow Partners LP
Arrow Masters LP
c/o Arrow Capital Management, LLC
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Re: Agreement to Tender
Gentlemen:
In consideration of Purchasers (as defined below) making a tender offer
(the "Offer") for up to 19,902,000 outstanding shares of common stock, $0.001
par value (the "Common Shares"), of X.X. Xxxxxxx & Co. Ltd. (the "Company") in
accordance with the Investment Agreement (as defined below), I hereby agree as
follows:
1. Capitalized terms used and not defined herein shall have the respective
meanings ascribed to such terms in the Investment Agreement, dated as of May 20,
2008 (the "Investment Agreement"), between Arrow Offshore Ltd, Arrow Partners
LP, Arrow Masters LP (collectively, "Purchasers") and the Company.
2. Immediately prior to the expiration of the Offer, I hereby agree to
tender in the Offer and not withdraw such number of Common Shares, if any,
distributed in the WPS II Distribution (as defined below) to me as equals the
greater of (i) zero or (ii) (x) the difference between 2,400,000 and the total
number of Common Shares tendered by other shareholders in the Offer and not
withdrawn (other than any Common Shares required to be tendered pursuant to the
Xxxxxxx Letter Agreement) (the "Tendered Shares"), multiplied by (y) the
Fraction (and, if applicable, rounded to the nearest whole number); provided
that the number of Common Shares I hereby agree to tender shall in no event
exceed 450,000. As used herein,
(a) "WPS II Distribution" means the distribution by WPS II, Inc. a
Delaware corporation ("WPS II"), to its stockholders on or about June 3,
2008 of 25% of the Common Shares owned by WPS II (provided the proposed
dissolution of WPS II is approved by its stockholders).
(b) "Xxxxxxx Letter Agreement" means that certain letter agreement
of even date herewith between Xxxxxxx X. Xxxxxxx, Xx. and Purchasers.
(c) "Fraction" means 450,000 divided by 2,400,000.
3. Immediately prior to the expiration of the Offer, the Company and
Purchasers shall jointly notify me of, and represent and warrant to me as to,
the number of Tendered Shares. If I am required to tender any Common Shares in
the Offer pursuant to paragraph 1 above (or if, in my absolute and sole
discretion, I elect to tender any Common Shares notwithstanding this letter
agreement), I hereby authorize the Company to deliver a notice of guaranteed
delivery from me with respect to such shares. Notwithstanding anything in this
letter agreement to the contrary, if as of immediately prior to the expiration
of the Offer I have already tendered in the Offer and not withdrawn any Common
Shares, such Common Shares shall be credited against the number of Common
Shares, if any, that I am required to tender pursuant to this letter agreement.
4. Notwithstanding the foregoing, this letter agreement shall terminate
automatically and be of no further force or effect if at any time prior to the
expiration of the Offer (i) the Per Share Amount is less than $1.60 or (ii) the
Company terminates the Investment Agreement in accordance with Section
7.1(d)(ii) thereof.
This letter agreement (i) will in all respects be interpreted, construed
and governed by and in accordance with the laws of the State of New York,
disregarding any conflict of laws provisions that may require the application of
the law of another jurisdiction, (ii) constitutes the entire agreement and
understanding between Purchasers and the undersigned with respect to the subject
matter hereof and supersedes all previous agreements, understanding or
discussions with respect to the subject matter hereof, (iii) may be executed in
counterparts, each of which will be deemed an original, but all of which
together will constitute and be the same instrument, and (iv) may be amended
only in a writing signed by each party hereto.
[Signature page follows]
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If the foregoing is in accordance with your understanding, please sign
this letter agreement in the space provided below.
Very truly yours,
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx
ACCEPTED AND AGREED:
ARROW MASTERS LP
By: Arrow Advisors LLC
General Partner
By: /s/ Alexandre von Furstenberg
-----------------------------
Alexandre von Furstenberg
Co-Managing Member
By: /s/ Xxx Xxxxxx
-----------------------------
Xxx Xxxxxx
Co-Managing Member
ARROW PARTNERS LP
By: Arrow Advisors LLC
General Partner
By: /s/ Alexandre von Furstenberg
-----------------------------
Alexandre von Furstenberg
Co-Managing Member
By: /s/ Xxx Xxxxxx
-----------------------------
Xxx Xxxxxx
Co-Managing Member
ARROW OFFSHORE, LTD.
By: /s/ Xxx Xxxxxx
-----------------------------
Xxx Xxxxxx
Director
[SIGNATURE CONTINUED ON FOLLOWING PAGE]
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X.X. XXXXXXX & CO. LTD.
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
Managing Director-Chief Financial Officer
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