EXCHANGE AND STANDSTILL AGREEMENT
WHEREAS, Mario J. Gabelli ("Gabelli"), Frederick J. Mancheski
("Mancheski"), David M. Perlmutter ("Perlmutter"), and GGCP, Inc., a New York
corporation ("GGCP"), are parties to that certain Settlement and Stock Purchase
Agreement dated May 31, 2006 (the "Settlement and Purchase Agreement"); and
WHEREAS, in accordance with the terms and conditions of the
Settlement and Purchase Agreement, the parties thereto are executing and
delivering, or are causing to be executed and delivered, among other things, the
Additional Settlement Documents and the Stipulation of Settlement (as those
terms are defined in the Settlement and Purchase Agreement), among others; and
WHEREAS, as a result of the transactions contemplated by the
Settlement and Purchase Agreement, Mancheski will receive 2,071,635 shares of
the Class B Common Stock, $.001 par value (the "Class B Common Stock"), of GAMCO
Investors, Inc., a New York corporation (the "Company"), and he has requested
that the Company exchange those shares for the same number of shares of Class A
Common Stock, $.001 par value (the "Class A Common Stock" and together with the
Class B Common Stock, the "Common Stock"), of the Company; and
WHEREAS, the Company has agreed to the proposed exchange and the
registration of the newly issued shares provided that Mancheski agrees to
certain limitations on his Class A Common Stock;
NOW, THEREFORE, this Exchange and Standstill Agreement (the
"Agreement") is made this 31st day of May, 2006, by and between Mancheski and
the Company.
I.
REPRESENTATIONS AND WARRANTIES
1. Representations and Warranties of Mancheski. Mancheski represents and
warrants to the Company as follows:
a. He is competent and has all requisite power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
b. This Agreement has been duly and validly executed and delivered
by Mancheski and, assuming due and valid execution and delivery
by the Company, constitutes a legal, valid and binding agreement
of Mancheski, enforceable against him in accordance with its
terms, subject as to enforceability to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally
and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity). The
performance of the terms of this Agreement does not conflict
with, constitute a violation of, or require any notice or consent
under, any certificate or articles of incorporation, limited
partnership agreement, trust agreement, bylaws or any other
agreement or instrument to which Mancheski is a party or by which
he is bound, and does not require any consent, approval or notice
under any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to Mancheski or Mancheski's shares
of Common Stock, except as may be required by federal and state
securities laws.
c. There are no other persons who, by reason of their personal,
business, professional or other arrangement, relationship or
affiliation with Mancheski, whether written or oral and whether
existing as of the date hereof or in the future, have agreed,
explicitly or implicitly, to take any action on behalf of or in
lieu of Mancheski that would otherwise be prohibited by this
Agreement.
d. As of the date hereof, Mancheski expects to become the beneficial
owner 2,071,635 shares of Class B Common Stock (the "Class B
Shares"), free and clear of all liens and encumbrances, pursuant
to the Settlement and Purchase Agreement and no other person will
have any beneficial ownership interest in the Class B Shares, and
no affiliate or associate of Mancheski will have any rights,
options or agreements to acquire or vote any other shares of
Common Stock or other securities of the Company.
e. Any shares acquired hereunder by Mancheski are being acquired
solely for investment purposes and may not be resold or
transferred except as permitted hereunder and in accordance with
applicable securities laws.
2. Representations and Warrants of the Company. The Company
represents and warrants to Mancheski as follows:
a. The Company has been duly organized and is validly existing and
in good standing, under the laws of the State of StateplaceNew
York, and has the requisite corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
b. This Agreement has been duly and validly executed and delivered
by the Company and, assuming due and valid execution and delivery
by Mancheski, constitutes a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with
its terms, subject as to enforceability to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally
and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity). The
performance of the terms of this Agreement does not conflict
with, constitute a violation of, or require any notice or consent
under, the certificate of incorporation or bylaws of the Company
or any agreement or instrument to which the Company is a party or
by which the Company is bound, and does not require any consent,
approval or notice under any provision of any judgment, order,
decree, statute, law, rule or regulation applicable to the
Company, except as may be required by federal and state
securities laws.
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II.
THE SHARE EXCHANGE
1. The Exchange. Mancheski hereby agrees to exchange his Class B Shares
solely for 2,071,635 shares of Class A Common Stock (the "Mancheski
Shares"). The Company hereby agrees that no later than 30 days after
the Closing Date (as defined in the Settlement and Purchase
Agreement), it will issue to Mancheski, in exchange for the Class B
Shares, solely the Mancheski Shares and deliver one or more
certificates as reasonably requested by Mancheski representing the
Mancheski Shares.
III.
STANDSTILL AND VOTING AGREEMENT
1. Standstill Provisions. Mancheski agrees that the "Standstill Period"
shall commence on the date of this Agreement and shall terminate on
the tenth anniversary hereof.
a. Mancheski agrees that, during the Standstill Period, without the
prior written consent of the Board, he shall not, directly or
indirectly:
(i) acquire, announce an intention to acquire, offer or propose
to acquire, or agree to acquire, directly or indirectly, by
purchase or otherwise, beneficial ownership of (A) any
Common Stock or direct or indirect rights or options to
acquire (through purchase, exchange, conversion or
otherwise) any Common Stock, excepting solely Common Stock
or other Voting Securities (I) received as a result of a
stock dividend, stock distribution or stock split, (II)
issued by the Company to Mancheski in connection with any
reorganization or recapitalization of the Company or (III)
issued by the Company in connection with any rights
offering;
(ii) solicit proxies (or written consents) or assist or
participate in any other way, directly or indirectly, in any
solicitation of proxies (or written consents), or otherwise
become a "participant" in a "solicitation," as such terms
are defined in Instruction 3 of Item 4 of Schedule 14A and
Rule 14a-1 of Regulation 14A, respectively, under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), in opposition to the recommendation or proposal of
the Board, or recommend or request or induce or attempt to
induce any other person to take any such actions, or seek to
advise, encourage or influence any other person with respect
to the voting of (or the execution of a written consent in
respect of) the Common Stock or other Voting Securities, or
execute any written consent in lieu of a meeting of the
holders of the Common Stock or other Voting Securities or
grant a proxy with respect to the voting of the Common Stock
or other Voting Securities to any person other than to the
Board or persons appointed as proxies by the Board or
Gabelli or his designee pursuant to Section III.2 hereof;
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(iii) initiate, propose or submit one or more stockholder
proposals or induce or attempt to induce any other person
to initiate any stockholder proposal;
(iv) seek to call or to request the call of, a special meeting of
the Company's stockholders, or make a request for a list of
the Company's stockholders;
(v) form, join or in any way participate in a "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) for the
purpose of acquiring, holding, voting or disposing of any
securities of the Company;
(vi) vote for any nominee or nominees for election to the Board,
other than those nominated or supported by the Board, or
consent to become a nominee for election as a member of the
Board unless nominated by the Board;
(vii) seek, alone or in concert with others, to place a
representative or other affiliate or nominee on the Board or
seek the removal of any member of the Board or a change in
the size or composition of the Board;
(viii) deposit any Common Stock or other Voting Securities in a
voting trust or enter into any other arrangement or
agreement with respect to the voting thereof except pursuant
to Section III.2 hereof;
(ix) acquire or agree, offer, seek or propose to acquire, or
cause to be acquired, ownership (including beneficial
ownership) of any of the assets or business of the Company
or any rights or options to acquire any such assets or
business from any person;
(x) seek, propose, or make any statement with respect to, or
solicit, negotiate with, or provide any information to any
person with respect to, a merger, consolidation, acquisition
of control or other business combination, tender or exchange
offer, purchase, sale or transfer of assets or securities,
dissolution, liquidation, reorganization, recapitalization,
dividend, share repurchase or similar transaction involving
the Company, its subsidiaries or its business, whether or
not any such transaction involves a change of control of the
Company;
(xi) take any action, alone or in concert with any other person,
advise, finance, assist or participate in or encourage any
person to take any action which is prohibited to be taken by
Mancheski or any of his affiliates or associates pursuant to
this Agreement, or make any investment in or enter into any
arrangement with, any other person that engages, or offers
or proposes to engage in any of the foregoing;
(xii) disclose publicly, or privately in a manner that could
reasonably be expected to become public, any intention, plan
or arrangement inconsistent with the foregoing;
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(xiii) make any request or demand to inspect the records of the
Company or to obtain a shareholders list for the Company or
encourage any shareholder or other persons to do so;
(xiv) commence, encourage, or support any derivative action in
the name of the Company or any class action against the
Company or any of its officers or directors; or
(xv) take any action challenging the validity or enforceability
of any provisions of this Section III.
2. Voting.
a. Mancheski agrees that, until the expiration of the Standstill
Period, provided that he is a record or beneficial owner of any
Common Stock or other Voting Securities of the Company, he will
be present, in person or represented by proxy, at all stockholder
meetings of the Company so that all Common Stock or other Voting
Securities beneficially owned by him and his affiliates and
associates may be counted for the purpose of determining the
presence of a quorum at such meetings.
b. Mancheski agrees that, until the expiration of the Standstill
Period, provided that he is a record or beneficial owner of any
Common Stock or other Voting Securities of the Company, he will
vote or cause to be voted, or consent or cause a consent to be
given with respect to, all shares of Common Stock or other Voting
Securities beneficially owned by him and his affiliates and
associates as follows: (i) with respect to the election of
directors at any meeting of stockholders or any adjournments or
postponements thereof, in favor of the nominees for directors
recommended by the Board or its nominating committee and (ii)
with respect to any other matter requiring a shareholder vote, in
accordance with the recommendation of the Board; provided that in
lieu of voting his shares in the foregoing manner, Mancheski may
deliver a proxy to Gabelli or his designee to vote at the next
scheduled meeting of shareholders of the Company or any
adjournment thereof.
c. Mancheski further agrees to take all action reasonably necessary
to carry out the intention of this Section III.2, including
without limitation, delivering to the Company upon its request
executed proxies naming the proxies appointed by the Board to
vote all shares of Common Stock or other Voting Securities
beneficially owned by Mancheski and/or his affiliates as of the
record dates of the Annual Meeting or any other meeting of the
Company's stockholders, as applicable. The Company shall deliver
a copy of such request to each of Mancheski and his counsel at
their respective addresses set forth in Section VI.4 no later
than 30 days before the meeting, and if executed proxies are not
received by the date that is 10 days before any such meeting,
without further action on the part of the parties hereto,
Mancheski shall be deemed to have appointed Gabelli or his
designee as Mancheski's proxy and attorney in-fact with respect
to all matters brought before such meeting to be voted in
accordance with this Agreement.
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IV.
TRANSFER LIMITATIONS
1. Transfer Limitations. From the date of this Agreement through the
first day of the Lockup Period, without the Company's prior written
consent, Mancheski shall not, directly or indirectly, sell, pledge,
encumber, transfer, or otherwise dispose of, or agree to sell, pledge,
encumber, transfer or otherwise dispose of, any interest in his shares
of Common Stock, including Mancheski Shares, or any other Common Stock
or other Voting Securities (a "Disposition"); provided that Mancheski
may effect a Disposition to any of the persons listed below who
executes and delivers a joinder agreement in the form annexed hereto
as Exhibit A:
a. to any corporation, partnership or other entity wholly-owned by
Mancheski;
b. to any trust the sole beneficiaries of which are family members,
or any charitable trust or charitable foundation established by
Mancheski;
c. to any not for profit entity;
d. as gifts or as bequests; or
e. to the Company.
In addition, Mancheski may pledge all or part of the Mancheski Shares
as security for a loan from a bank or other financial institution that
has entered into an Agreement with the Company containing terms and
conditions substantially equivalent to those in this Agreement.
2. The Lockup Period. The Lockup Period shall commence on the date
that all of Mancheski Shares become registered with the Securities and
Exchange Commission (the "SEC") for sale in the public markets and
shall end on the second anniversary of that date.
3. The Lockup. During the Lockup Period, Mancheski shall not make any
Disposition of Mancheski Shares except that: (i) on the first day of
the Lockup Period, one-twenty fourth (1/24th) of Mancheski Shares,
including any shares transferred pursuant to Section 1 above, shall be
freed from the foregoing restriction and may thereafter be sold in the
public markets; (ii) on the same day of each month thereafter, the
same amount of Mancheski Shares shall also be freed from the foregoing
restrictions; and (iii) at all times during the Lockup Period,
Mancheski shall be permitted to make the same transfers as set forth
in Section 1 above. If during the Lockup Period (i) the Company
suspends effectiveness of the Registration Statement (as defined in
the Registration Rights Agreement), pursuant to Section 5(a) of the
Registration Rights Agreement and (ii) Mancheski is ineligible under
Rule 144 to sell the maximum number of Shares permitted by this
provision, then Mancheski may, once the Registration Statement has
again become effective, immediately sell in the public markets the
number of Mancheski Shares equal to the number of Mancheski Shares
that he would have been permitted to sell pursuant to this Section 3
during the period of the suspension. All Shares held by Mancheski or
his transferee shall remain subject to all other provisions of this
Agreement, unless sold in the public markets in accordance with this
Agreement.
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4. Not Applicable to Existing Shares. The restrictions set forth in
this Article IV shall not apply to the 19,815 shares of Class A Common
Stock owned by Mancheski as of dateMonth4Day17Year2006April 17, 2006.
V.
ADDITIONAL AGREEMENTS
1. Press Releases; Public Statements. Commencing with the date hereof,
neither the Company nor Mancheski nor any of their respective
affiliates or representatives shall issue any other press release or
other publicly available document with respect to the subject matter
of this Agreement, the Settlement and Purchase Agreement, the
Additional Settlement Documents and the Stipulation of Settlement. The
Company shall make all filings with the SEC appropriate in connection
with the execution of this Agreement, including a Current Report on
Form 8-K. Mancheski shall not during the Standstill Period issue any
press release, grant any interviews with the press or any other person
or otherwise make any public statements concerning the Company, except
to the extent required by statute or regulation, unless the Company
shall have agreed in form and substance to the contents thereof prior
to such issuance.
2. Mutual Releases. In consideration of the provisions of this Agreement:
a. Mancheski, for himself and on behalf of his heirs,
representatives, and assigns (collectively, "Releasor"), hereby
remises, covenants not to sue, forever discharges, and absolutely
and irrevocably releases, the Company, and each of its past and
present affiliates, subsidiaries, representatives, employees,
attorneys, directors, officers, and assigns (collectively, the
"Releasees"), from any and all claims whatsoever of every kind
and nature, including without limitation, any and all claims,
rights, demands, suits, causes of action, losses, damages, fees,
costs, obligations, amounts, liabilities and expenses, known or
unknown, suspected or unsuspected, fixed or contingent, direct or
indirect that Releasor has, had, or may have had against
Releasees, from the beginning of time to the Date of this
Agreement. NOTHING IN THIS RELEASE SHALL RELEASE THE RELEASEES
FROM THEIR OBLIGATIONS PURSUANT TO THIS AGREEMENT, THE ADDITIONAL
SETTLEMENT DOCUMENTS OR THE STIPULATION OF SETTLEMENT.
IN THE EVENT OF THE TERMINATION OF THE SETTLEMENT AND PURCHASE
AGREEMENT IN ACCORDANCE WITH ITS TERMS, THIS RELEASE SHALL
FORTHWITH BECOME VOID AND SHALL BE OF NO EFFECT WHATSOEVER.
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b. The Company, for itself and on behalf of each of its past and
present affiliates, subsidiaries, representatives, employees,
directors, officers, and assigns (collectively, "Releasor"),
hereby remises, covenants not to sue, forever discharges, and
absolutely and irrevocably releases Mancheski and his heirs,
representatives, and assigns (collectively, the "Releasees"),
from any and all claims whatsoever of every kind and nature,
including without limitation, any and all claims, rights,
demands, suits, causes of action, losses, damages, fees, costs,
obligations, amounts, liabilities and expenses, known or unknown,
suspected or unsuspected, fixed or contingent, direct or indirect
that Releasor has, had, or may have had against Releasees, from
the beginning of time to the Date of this Agreement. NOTHING IN
THIS RELEASE SHALL RELEASE THE RELEASEES FROM THEIR OBLIGATIONS
PURSUANT TO THIS AGREEMENT, THE ADDITIONAL SETTLEMENT DOCUMENTS
OR THE STIPULATION OF SETTLEMENT.
IN THE EVENT OF THE TERMINATION OF THE SETTLEMENT AND PURCHASE
AGREEMENT IN ACCORDANCE WITH ITS TERMS, THIS RELEASE SHALL
FORTHWITH BECOME VOID AND SHALL BE OF NO EFFECT WHATSOEVER.
3. Negative Remarks.
a. During the Standstill Period, Mancheski shall not, and shall
cause his agents or representatives not to, directly or
indirectly, in any capacity or manner, make, express, transmit,
speak, write, verbalize or otherwise communicate in any way (or
cause, further, assist, solicit, encourage, support or
participate in any of the foregoing), any remark, comment,
message, information, declaration, communication or other
statement of any kind, whether oral, in writing, electronically
transferred or otherwise, that might reasonably be construed to
be derogatory or critical of, or negative toward, Gabelli, the
Company or any of its directors, officers, Affiliates,
subsidiaries, employees, agents or representatives in their
capacities thereof (collectively, the "GBL Parties"), or to
malign, harm, disparage, defame or damage the reputation or good
name of Gabelli, the Company, its business or those of any of the
GBL Parties, and/or that reveals, discloses, incorporates, is
based upon, discusses, includes or otherwise involves any
Confidential Information (as hereinafter defined).
b. During the Standstill Period, the Company shall not, and shall
cause its agents or representatives not to, directly or
indirectly, in any capacity or manner, make, express, transmit,
speak, write, verbalize or otherwise communicate in any way (or
cause, further, assist, solicit, encourage, support or
participate in any of the foregoing), any remark, comment,
message, information, declaration, communication or other
statement of any kind, whether oral, in writing, electronically
transferred or otherwise, that might reasonably be construed to
be derogatory or critical of, or negative toward, Mancheski, or
any of Mancheski's Affiliates, employees, agents or
representatives in their capacities thereof (collectively the
"Mancheski Parties"), or to malign, harm, disparage, defame or
damage the reputation or good name of any of the Mancheski
Parties.
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c. The provisions of this Section 3 shall not apply to the
individual parties' confidential communications with their
spouses, to any of the parties' confidential communications with
their legal and financial advisors, or to any "permitted
communications" pursuant to Section V.7 of this Agreement.
d. In the event of a breach of Section V.1 or this Section V.3 by
any party, or any of its Affiliates, officers, directors,
employees, agents or representatives, which breach is determined
to be material by the Court, the Court may award such relief as
it determines appropriate, including relieving the other parties
from any further obligation to comply with Sections V.1 and/or
V.3 of this Agreement and holding the breaching party or parties
in contempt of Court, and may assess any and all contempt
remedies deemed appropriate by the Court. Nothing in this Section
V.3(d) is intended or may be construed to limit or circumscribe
any other or different remedies that may also be available to the
parties for breach of the specified sections or any other
provisions of this Agreement.
4. Treatment of Discovery Documents and Information. Nothing in this
Agreement shall in any way affect that certain Stipulation and Order
of Confidentiality entered on or about October 1, 2004 in the Action
(as hereinafter defined), which Stipulation and Order shall remain in
full force and effect in accordance with its terms.
5. Specific Performance. The Company and Mancheski acknowledge and agree
that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the Company and
Mancheski, in addition to any other remedy to which they may be
entitled at law or in equity, shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and/or to compel
specific performance of this Agreement in any action.
6. Schedule 13D/13G. Subject to compliance with the terms of this
Agreement, within ten days after the Closing Date (as that term is
defined in the Settlement and Purchase Agreement), Mancheski and his
affiliates and associates shall file with the SEC a statement on
Schedule 13D or 13G, as applicable, a copy of which shall be delivered
to the Company at least two business days prior to the filing thereof
with the SEC.
7. Permitted Communications. Notwithstanding any of the provisions of
this Agreement to the contrary, no provision of this Agreement shall
prohibit any party from (a) filing any documents required by the SEC
or applicable state securities laws or making any other disclosure
required by federal or state securities laws, provided that the
content of any document so filed does not violate any of the other
terms and conditions of this Agreement unless such content constitutes
disclosure required by any securities laws or rules or regulations
promulgated from time to time by the SEC, (b) making any filing or
disclosure permitted by Section 4.5(b) of the Settlement and Purchase
Agreement, (c) responding and testifying as permitted by Section
4.5(c) of the Settlement and Purchase Agreement, (d) enforcing any
rights of such party under this Agreement, (e) communicating with
actual and potential clients or their representatives about the
settlement in a manner consistent with the press release previously
issued by GGCP and any public disclosure permitted hereunder, (f) in
the case of the Company, issuing any press releases for the purpose of
disclosing material information under federal or state securities
laws, or (g) in the case of Mancheski, providing this Agreement, the
Registration Rights Agreement, and the Settlement and Purchase
Agreement to any actual or proposed transferee, provided that any such
actual or proposed transferee agrees in writing to maintain the
confidentiality of such documents. In the event Mancheski or the
Company receives any subpoena or other judicially enforceable written
request from any court or government agency of competent jurisdiction
concerning Mancheski's interests in the Company, he and the Company
shall follow the procedures set forth in the final three sentences of
Section 4.5 of the Settlement and Purchase Agreement.
9
8. Compliance by Affiliates and Associates. To the extent Mancheski is
bound by any covenant or agreement contained in this Agreement, he
shall cause each of his affiliates, associates and assignees to abide
by such covenant or agreement as if such affiliate or associate were
itself Mancheski and a signatory to this Agreement.
9. Waiver of Conflict of Interest. Mancheski hereby waives any conflict
of interest with respect to the hiring by the Company of Morvillo,
Abramowitz, Grand, Iason & Silberberg, P.C. or Collier, Halpern,
Newberg, Nolletti & Bock, LLP with respect to matters unrelated to the
transactions contemplated by this Agreement and unrelated to the
action (the "Action") pending in Supreme Court of the State of New
York, Westchester County, captioned Frederick J. Mancheski and David
M. Perlmutter v. Gabelli Group Capital Partners, Inc. (Index No.
03-18762).
10. Termination. In the event of termination of the Settlement and
Purchase Agreement, this Agreement shall immediately terminate and
became void as set forth in Section 7.2 of the Settlement and Purchase
Agreement.
VI.
MISCELLANEOUS
1. Entire Agreement. This Agreement, the Registration Rights Agreement
and the Stipulation of Settlement constitute the entire understanding
of the parties with respect to the subject matter hereof and supersede
all previous negotiations, representations, discussions or agreements
by the parties hereto concerning the subject matter hereof.
2. Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
3. Counterparts. For the convenience of the parties, any number of
counterparts of this Agreement may be executed and delivered
(including by facsimile transmission) by the parties, and each such
executed counterpart (including any counterparts executed and
delivered by facsimile transmission) shall be an original instrument.
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4. Notices. All notices and other communications required or permitted
under this Agreement shall be deemed to have been duly given and made
when received if in writing and if served either by personal delivery
to the party for whom intended (which shall include delivery by
Federal Express or similar nationally recognized service) or five
business days after being deposited, postage prepaid, certified or
registered mail, return receipt requested, in the United States mail
bearing the address shown in this Agreement for, or such other address
as may be designated in writing hereafter by, such party:
if to the Company to:
GAMCO Investors, Inc.
One Corporate Center
Rye, New York 10580
Attention: James E. McKee
with a copy, which shall not constitute notice, to:
Richard T. Prins
Skadden, Arps, Slate, Meagher & Flom L.L.P.
4 Times Square
New York, New York 10036
and if to Mancheski as follows:
Frederick J. Mancheski
1060 Vegas Valley Drive
Las Vegas, Nevada 89109
with a copy, which shall not constitute notice, to:
Collier, Halpern, Newberg, Nolletti & Bock, LLP
One North Lexington Avenue
White Plains, NY 10601
Attention: Philip M. Halpern
Any party may change the address to which notices or other
communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
5. Successors and Assigns. This Agreement shall bind the heirs,
successors and permitted assigns of the parties, and inure to the
benefit of any heir, successor or permitted assign of any of the
parties.
6. Governing Law. This Agreement shall be governed by and constructed and
enforced in accordance with the internal laws of the State of
StateplaceNew York, without giving effect to the conflict of the laws
principles thereof. All disputes relating to this agreement shall be
brought exclusively before the Supreme Court of New York,
PlaceNameplaceWestchester PlaceTypeCounty, for assignment to the
Honorable Linda S. Jamieson and all parties and their assigns consent
to the personal jurisdiction of that Court and waive trial by jury.
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7. Certain Terms. As used herein, the following terms shall have the
meanings ascribed to them:
a. "affiliate" and "associate" shall have the meanings set forth in
Rule 12b-2 under the Exchange Act;
b. "beneficial owner," "beneficially own," and "beneficial
ownership" shall be determined as set forth under Rule 13d-3
under the Exchange Act; provided that a person shall be deemed to
be the beneficial owner of all shares of Common Stock or other
Voting Securities which such person has the right to acquire
pursuant to the exercise of any rights in connection with any
securities or any agreement, regardless of when such rights may
be exercised and whether they are conditional;
c. "Board" shall mean the Board of Directors of the Company;
d. "business day" shall mean any day other than any Saturday,
Sunday, or day on which commercial banks in CityplaceNew York,
StateNew York are authorized or required to be closed;
e. "person" shall mean any individual, corporation, association,
partnership, joint venture, trust, estate, limited liability
company, limited liability partnership or other entity or
organization, including a government or political subdivision or
any agency or instrumentality thereof; and
f. "Voting Securities" shall mean securities of the Company having
the power to vote generally for the election of directors of the
Company and any securities convertible into, or exercisable or
exchangeable for, such securities, and shall include, without
limitation, the Common Stock.
8. Survival of Representations. All representations and warranties made
by Mancheski and the Company in this Agreement or pursuant hereto
shall survive the execution and delivery hereof.
9. Amendments; Waiver. Any provision of this Agreement may be amended or
waived if, but only if, such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement,
or in the case of a waiver, by the party against whom the waiver is to
be effective. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be
cumulative.
10. Interpretation. Each of the undersigned parties hereby acknowledges
that such parties fully negotiated the terms of this Agreement, that
each such party had an equal opportunity to influence the drafting of
the language contained in this Agreement, that each party has had an
opportunity to review the contents of this Agreement with counsel of
its choice, and that there shall be no presumption against any such
party on the ground that such party was responsible for preparing this
Agreement or any part hereof. Whenever the words "include" or
"including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation." The words "hereof,"
"herein" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision
of this Agreement.
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11. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Agreement, or the
application thereof to any person or any circumstance, is invalid or
unenforceable, (a) a suitable and equitable provision shall be
substituted therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be
affected by such invalidity or unenforceability, nor shall not be
affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability
of such provision, or the application thereof, in any other
jurisdiction.
12. No Third Party Beneficiaries. This Agreement shall be binding upon
and, except as provided below, inure solely to the benefit of each
party hereto and their successors, assigns and transferees, and
nothing in this Agreement, express or implied, is intended to confer
upon any other person (other than the Company Releasees and Mancheski
Releasees as provided in Section V.2) any rights or remedies of any
nature whatsoever under or by reason of this Agreement, provided that
all parties recognize that, for good and valid consideration, Gabelli
and GGCP are third party beneficiaries of this Agreement and either
may enforce any of the terms of this Agreement in the event of a
breach by Mancheski.
13. Attorneys' Fees. In the event of any dispute or controversy arising
out of this Agreement or in connection with the interpretation of any
term or condition of this Agreement, the enforcement of this
Agreement, damages for breach of any provision hereof, or in the
situation where any provision of this Agreement is validly asserted as
a defense, the prevailing party shall be entitled to recover costs of
suit, including reasonable attorneys' fees actually incurred, from the
other party in addition to any other available remedy.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first referred to above.
GAMCO INVESTORS, INC.
By:
-------------------------------------
Name:
Title:
----------------------------------------
FREDERICK J. MANCHESKI
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EXHIBIT A
JOINDER AGREEMENT
JOINDER AGREEMENT dated ________, 200__ by and between GAMCO
Investors, Inc., a StateplaceNew York corporation (the "Company"), and
________________ ("Shareholder").
W I T N E S S E T H
WHEREAS, pursuant to that certain Exchange and Standstill Agreement
dated May 31, 2006 (the "Standstill Agreement") by and between the Company and
Frederick J. Mancheski ("Mancheski"), it is a condition to the transfer of
shares of capital stock of the Company (the "Shares") to Shareholder that
Shareholder become a party to (i) the Standstill Agreement, and (ii) that
certain Registration Rights Agreement dated May 31, 2006 (the "Registration
Rights Agreement") by and among the Company, Mancheski and David M. Perlmutter.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements of the parties herein contained, the parties hereby
agree as follows:
Section 1. Joinder. Effective immediately (i) Shareholder is joined as
a party to the Standstill Agreement and is subject to, and shall have all of the
rights, liabilities and obligations under the following provisions of the
Standstill Agreement to the same extent as Mancheski: Article III; Article IV;
Article V, Sections 1, 2(a) and (c), 3 to 7 inclusive and 10 only; and Article
VI; and (ii) Shareholder is joined as a party to the Registration Rights
Agreement and is subject to and shall have all of the rights, liabilities and
obligations thereunder to the same extent as Mancheski. Shareholder shall not
transfer the Shares except pursuant to Article IV, Sections 2 and 3.
Section 2. Governing Law. This Joinder Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York, except that
body of law relating to choice of laws.
Section 3. Successors and Assigns. This Joinder Agreement shall be
binding upon the parties hereto and their respective successors and assigns
(which become such by operation of law), legal representatives and heirs.
Section 4. Modification. Neither this Joinder Agreement nor any
provision hereof may be modified, changed, discharged or terminated except by
the written agreement of each of the parties hereto.
Section 5. Severability. In the event that any one or more of the
provisions contained in this Joinder Agreement shall, for any reason, be held to
be valid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Joinder
Agreement.
Section 6. Injunctive Relief. The parties hereto acknowledge and agree
that a remedy at law for any breach or threatened breach of the provisions of
this Joinder Agreement would be inadequate and, therefore, agree that each party
hereto shall be entitled to injunctive relief in addition to any other available
rights and remedies in case of any such breach or threatened breach; provided,
however, that nothing contained herein shall be construed as prohibiting any
party hereto from pursuing any other rights and remedies available for any such
breach or threatened breach.
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Section 7. Counterparts. This Joinder Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original, but all
of which taken together shall constitute one and the same instrument.
Section 8. Entire Agreement. This Joinder Agreement, the Standstill
Agreement and the Registration Rights Agreement supersede all previous
agreements among the parties hereto with respect to the subject matter hereof.
Section 9. Notices. Any notice, demand or request required or
permitted to be given under the provisions of this Joinder Agreement (i) shall
be in writing; (ii) shall be delivered personally, including by means of
telecopy (confirmed by a subsequent delivery by courier or mail) or courier, or
mailed by registered or certified mail, postage prepaid and return receipt
requested; (iii) shall be deemed given on the date of personal delivery or on
the date that is five days after the date set forth on the return receipt; and
(iv) shall be delivered or mailed as follows or to such other address as any
party may from time to time direct:
if to the Company to:
GAMCO Investors, Inc.
One Corporate Center
Rye, New York 10580
Attention: James E. McKee
with a copy, which shall not constitute notice, to:
Richard T. Prins
Skadden, Arps, Slate, Meagher & Flom L.L.P.
4 Times Square
New York, New York 10036
and if to Shareholder as follows:
[name]
[address]
or at such other address provided by such party in a notice pursuant to the
provisions of this Section 9.
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IN WITNESS WHEREOF, the parties hereto have executed this Joinder
Agreement as of the day and year first above written.
GAMCO Investors, Inc.
By:
-------------------------------------
Name:
Title:
----------------------------------------
[Shareholder]
[Shareholder's Address]
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