EXHIBIT 2.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment") is
entered into as of October 1, 2004, by and among TEKELEC, a California
corporation ("Parent"), BUCKDANGER, INC., a New York corporation ("Buckdanger"),
STELEUS GROUP, INC., a New York corporation (the "Company"), and the PREFERRED
STOCKHOLDERS of the Company identified on the signature pages hereto
(collectively, the "Preferred Stockholders"), in order to amend that certain
Agreement and Plan of Merger dated as of August 19, 2004 among the parties
hereto (the "Agreement"). Each capitalized term used in this Amendment shall
have the same meaning assigned to that term as in the Agreement unless expressly
defined in this Amendment.
RECITAL
Parent, Buckdanger, the Company and the Preferred Stockholders wish to
amend the Agreement in the manner provided in this Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the recital and the mutual covenants
and agreements hereinafter expressed, the Parties herby agree as follows:
1. CASH TRANSACTION. For all purposes under the Agreement, including
without limitation Sections 1.4(h), 1.4(i), 1.4(j), 1.10, 5.5 and 6.2 and
Article IV thereof, the Merger shall be deemed to be a "Cash Transaction" as
defined in Section 1.4(a) of the Agreement, as Section 1.4(a) is amended and
replaced in its entirety pursuant to Section 8 below.
2. CHANGE IN $54,600,000 DOLLAR AMOUNT. For purposes of Section 1.4(h)
of the Agreement, the amount of $54,600,000 is hereby stricken and deleted and
replaced by the amount of $53,600,000. The parties expressly acknowledge and
agree, however, that the amount of $54,600,000 as set forth in Section 1.4(b) of
the Agreement, as Section 1.4(b) is amended and replaced in its entirety
pursuant to Section 9 below, shall not be changed to the amount of $53,600,000
by virtue of this Section 2.
3. CHANGE IN $8,700,000 DOLLAR AMOUNT; CHANGE IN "ESCROW DEPOSIT"
DEFINITION. For all purposes under the Agreement, including without limitation
Sections 1.4(d), 1.10(d), 1.11, 9.3(b), 9.3(g), 9.3(h), 9.3(i) and 9.8(c)
thereof and the form of Escrow Agreement attached as Exhibit G thereto, the
amount of $8,700,000 is hereby stricken and deleted and replaced by the amount
of $8,550,000. The parties expressly acknowledge and agree that, as a result of
such amendment, for all purposes under the Agreement the term "Escrow Deposit"
shall mean the amount of $8,550,000 rather than the amount of $8,700,000.
4. CHANGE IN $580,000 DOLLAR AMOUNT. For all purposes under the
Agreement, including without limitation Sections 9.3(a), 9.3(d), 9.3(e), 9.4(b)
and 9.12 thereof and the form of Escrow Agreement attached as Exhibit G thereto,
the amount of $580,000 is hereby stricken and deleted and replaced by the amount
of $570,000.
5. CHANGE IN $4,095,000 DOLLAR AMOUNT. For all purposes under the
Agreement, including without limitation Sections 9.4(c) and 9.4(d) thereof, the
amount of $4,095,000 is hereby stricken and deleted and replaced by the amount
of $4,020,000.
6. DELETION OF SECTIONS 1.4(e), 5.13, 6.7, 7.2, 7.3, 8.11(e) AND 8.2(f).
Sections 1.4(e), 5.13, 6.7, 7.2, 7.3, 8.1(e) and 8.2(f) are hereby stricken and
deleted from the Agreement in their entirety and shall have no further force or
effect.
7. AMENDMENT OF SECTION 1.2(b). Section 1.2(b) of the Agreement is
hereby stricken and replaced in its entirety with the provision set forth below:
"(b) Closing. The closing of the Merger (the "Closing") shall
take place at the offices of Bryan Cave LLP, New York, New York, at 9:00 a.m.,
local time, on October 14, 2004, or such other date as Parent, the Company and
Acquisition Subsidiary may agree in writing (the "Closing Date"). "Business Day"
shall mean any day which is not a Saturday, Sunday or a legal holiday in the
State of New York, United States of America."
8. AMENDMENT OF SECTION 1.4(a). Section 1.4(a) of the Agreement is
hereby deleted and stricken and replaced in its entirety with the provision set
forth below:
"(a) Aggregate Merger Consideration. Subject to the other terms
and provisions of this Agreement, at the Effective Time, by virtue of the Merger
and without any action on the part of any holder thereof, the outstanding shares
as of the date hereof of the Company's Series A Convertible Preferred Shares,
par value $1.00 per share, Series B Convertible Preferred Shares, par value
$1.00 per share, Series C Convertible Preferred Shares, par value $1.00 per
share, Series D Convertible Preferred Shares, par value $1.00 per share, Series
E Convertible Preferred Shares, par value $1.00 per share, Series F Convertible
Preferred Shares, par value $1.00 per share, Series G Convertible Preferred
Shares, par value $1.00 per share, and Series H Convertible Preferred Shares,
par value $1.00 per share (collectively, the "Company Preferred Stock"), shall
be converted into and become the right to receive consideration (the "Merger
Consideration") comprised of the aggregate cash amount of $53,600,000 reduced by
the Working Capital Adjustment, if any, and further reduced by the amount, if
any, by which the Company Transaction Expenses exceed the aggregate amount of
$1,200,000 as provided in Section 11.7. The payment of the Merger Consideration
in cash as provided in this Section 1.4(a) is referred to herein as the "Cash
Transaction"."
9. AMENDMENT OF SECTION 1.4(b). Section 1.4(b) of the Agreement is
hereby stricken and replaced in its entirety with the provision set forth below:
"(b) Conversion of Shares.
(i) Subject to the other terms and provisions of this
Agreement, at the Effective Time, by virtue of the Merger and without any action
on the part of any holder thereof:
(A) Each of the issued and outstanding shares of the
Company's Series A Convertible Preferred Shares, par value of $1.00 per
share (the "Series A Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger
2
Consideration consisting of an amount of cash that is equal to the
Series A Exchange Amount.
(B) Each of the issued and outstanding shares of the
Company's Series B Convertible Preferred Shares, par value of $1.00 per
share (the "Series B Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger Consideration
consisting of an amount of cash that is equal to the Series B Exchange
Amount.
(C) Each of the issued and outstanding shares of the
Company's Series C Convertible Preferred Shares, par value of $1.00 per
share (the "Series C Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger Consideration
consisting of an amount of cash that is equal to the Series C Exchange
Amount.
(D) Each of the issued and outstanding shares of the
Company's Series D Convertible Preferred Shares, par value of $1.00 per
share (the "Series D Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger Consideration
consisting of an amount of cash that is equal to the Series D Exchange
Amount.
(E) Each of the issued and outstanding shares of the
Company's Series E Convertible Preferred Shares, par value of $1.00 per
share (the "Series E Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger Consideration as
follows:
(1) Each share of Series E Preferred Stock
that was outstanding as of June 30, 2004 (the "Old Series E
Preferred Stock") will be converted into and become the right to
receive a portion of the Merger Consideration consisting of an
amount of cash that is equal to the Old Series E Exchange Amount.
(2) Each share of Series E Preferred Stock
that was issued on July 30, 2004 (the "New Series E Preferred
Stock") will be converted into and become the right to receive a
portion of the Merger Consideration consisting of an amount of
cash that is equal to the New Series E Exchange Amount.
(F) Each of the issued and outstanding shares of the
Company's Series F Convertible Preferred Shares, par value of $1.00 per
share (the "Series F Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger Consideration as
follows:
(1) Each share of Series F Preferred Stock
that was outstanding as of June 30, 2004 (the "Old Series F
Preferred Stock") will be converted into and become the right to
receive a portion of the Merger
3
Consideration consisting of an amount of cash that is equal to
the Old Series F Exchange Amount.
(2) Each share of Series F Preferred Stock
that was issued on July 30, 2004 (the "New Series F Preferred
Stock") will be converted into and become the right to receive a
portion of the Merger Consideration consisting of an amount of
cash that is equal to the New Series F Exchange Amount.
(G) Each of the issued and outstanding shares of the
Company's Series G Convertible Preferred Shares, par value of $1.00 per
share (the "Series G Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger Consideration
consisting of an amount of cash that is equal to the Series G Exchange
Amount.
(H) Each of the issued and outstanding shares of the
Company's Series H Convertible Preferred Shares, par value of $1.00 per
share (the "Series H Preferred Stock"), will be converted into and
become the right to receive a portion of the Merger Consideration
consisting of an amount of cash that is equal to the Series H Exchange
Amount.
(ii) The following terms have the following meanings:
(1) "Series A-F Preferred Stock" means,
collectively, the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock.
(2) "Series A-F Aggregate Consideration Amount"
means the amount of the Merger Consideration minus the Series G-H Aggregate
Consideration Amount.
(3) "Series A-F Aggregate Preference Amount" means
the sum of the Series A Aggregate Preference Amount; the Series B Aggregate
Preference Amount; the Series C Aggregate Preference Amount; the Series D
Aggregate Preference Amount; the Series E Aggregate Preference Amount; and the
Series F Aggregate Preference Amount.
(4) "Series A Liquidation Preference Amount" means
an amount per share of Company Series A Preferred Stock outstanding immediately
prior to the Effective Time equal to (A) $100.00 plus (B) all accrued and unpaid
dividends on such share of Series A Preferred Stock as of such time.
(5) "Series A Aggregate Preference Amount" means the
Series A Liquidation Preference Amount multiplied by the total number of shares
of Series A Preferred Stock outstanding immediately prior to the Effective Time.
(6) "Series A Exchange Amount" for a share of Series
A Preferred Stock is equal to (x) the Series A-F Aggregate Consideration Amount
multiplied by (y) a fraction, the numerator of which is the Series A Liquidation
Preference Amount and the denominator of which is the Series A-F Aggregate
Preference Amount.
4
(7) "Series B Liquidation Preference Amount" means
an amount per share of Company Series B Preferred Stock outstanding immediately
prior to the Effective Time equal to (A) $100.00 plus (B) all accrued and unpaid
dividends on such share of Series B Preferred Stock as of such time.
(8) "Series B Aggregate Preference Amount" means the
Series B Liquidation Preference Amount multiplied by the total number of shares
of Series B Preferred Stock outstanding immediately prior to the Effective Time.
(9) "Series B Exchange Amount" for a share of Series
B Preferred Stock is equal to (x) the Series A-F Aggregate Consideration Amount
multiplied by (y) a fraction, the numerator of which is the Series B Liquidation
Preference Amount and the denominator of which is the Series A-F Aggregate
Preference Amount.
(10) "Series C Liquidation Preference Amount" means
an amount per share of Company Series C Preferred Stock outstanding immediately
prior to the Effective Time equal to (A) $100.00 plus (B) all accrued and unpaid
dividends on such share of Series C Preferred Stock as of such time.
(11) "Series C Aggregate Preference Amount" means
the Series C Liquidation Preference Amount multiplied by the total number of
shares of Series C Preferred Stock outstanding immediately prior to the
Effective Time.
(12) "Series C Exchange Amount" for a share of
Series C Preferred Stock is equal to (x) the Series A-F Aggregate Consideration
Amount multiplied by (y) a fraction, the numerator of which is the Series C
Liquidation Preference Amount and the denominator of which is the Series A-F
Aggregate Preference Amount.
(13) "Series D Liquidation Preference Amount" means
an amount per share of Company Series D Preferred Stock outstanding immediately
prior to the Effective Time equal to (A) $100.00 plus (B) all accrued and unpaid
dividends on such share of Series D Preferred Stock as of such time.
(14) "Series D Aggregate Preference Amount" means
the Series D Liquidation Preference Amount multiplied by the total number of
shares of Series D Preferred Stock outstanding immediately prior to the
Effective Time.
(15) "Series D Exchange Amount" for a share of
Series D Preferred Stock is equal to (x) the Series A-F Aggregate Consideration
Amount multiplied by (y) a fraction, the numerator of which is the Series D
Liquidation Preference Amount and the denominator of which is the Series A-F
Aggregate Preference Amount.
(16) "Old Series E Liquidation Preference Amount"
means an amount per share of Old Series E Preferred Stock outstanding
immediately prior to the Effective Time equal to (A) $100.00 plus (B) all
accrued and unpaid dividends on such share of Old Series E Preferred Stock as of
such time.
5
(17) "Old Series E Aggregate Preference Amount"
means the Old Series E Liquidation Preference Amount multiplied by the total
number of shares of Old Series E Preferred Stock outstanding immediately prior
to the Effective Time.
(18) "Old Series E Exchange Amount" for a share of
Old Series E Preferred Stock is equal to (x) the Series A-F Aggregate
Consideration Amount multiplied by (y) a fraction, the numerator of which is the
Old Series E Liquidation Preference Amount and the denominator of which is the
Series A-F Aggregate Preference Amount.
(19) "New Series E Liquidation Preference Amount"
means an amount per share of New Series E Preferred Stock outstanding
immediately prior to the Effective Time equal to (A) $100.00 plus (B) all
accrued and unpaid dividends on such share of New Series E Preferred Stock as of
such time.
(20) "New Series E Aggregate Preference Amount"
means the New Series E Liquidation Preference Amount multiplied by the total
number of shares of New Series E Preferred Stock outstanding immediately prior
to the Effective Time.
(21) "New Series E Exchange Amount" for a share of
New Series E Preferred Stock is equal to (x) the Series A-F Aggregate
Consideration Amount multiplied by (y) a fraction, the numerator of which is the
New Series E Liquidation Preference Amount and the denominator of which is the
Series A-F Aggregate Preference Amount.
(22) "Series E Aggregate Preference Amount" means
the sum of the Old Series E Aggregate Preference Amount and the New Series E
Aggregate Preference Amount.
(23) "Old Series F Liquidation Preference Amount"
means an amount per share of Old Series F Preferred Stock outstanding
immediately prior to the Effective Time equal to (A) $100.00 plus (B) all
accrued and unpaid dividends on such share of Old Series F Preferred Stock as of
such time.
(24) "Old Series F Aggregate Preference Amount"
means the Old Series F Liquidation Preference Amount multiplied by the total
number of shares of Old Series F Preferred Stock outstanding immediately prior
to the Effective Time.
(25) "Old Series F Exchange Amount" for a share of
Series F Preferred Stock is equal to (x) the Series A-F Aggregate Consideration
Amount multiplied by (y) a fraction, the numerator of which is the Old Series F
Liquidation Preference Amount and the denominator of which is the Series A-F
Aggregate Preference Amount.
(26) "New Series F Liquidation Preference Amount"
means an amount per share of New Series F Preferred Stock outstanding
immediately prior to the Effective Time equal to (A) $100.00 plus (B) all
accrued and unpaid dividends on such share of New Series F Preferred Stock as of
such time.
6
(27) "New Series F Aggregate Preference Amount"
means the New Series F Liquidation Preference Amount multiplied by the total
number of shares of New Series F Preferred Stock outstanding immediately prior
to the Effective Time.
(28) "New Series F Exchange Amount" for a share of
Series F Preferred Stock is equal to (x) the Series A-F Aggregate Consideration
Amount multiplied by (y) a fraction, the numerator of which is the New Series F
Liquidation Preference Amount and the denominator of which is the Series A-F
Aggregate Preference Amount.
(29) "Series F Aggregate Preference Amount" means
the sum of the Old Series F Aggregate Preference Amount and the New Series F
Aggregate Preference Amount.
(30) "Series G Liquidation Preference Amount" means
an amount per share of Company Series G Preferred Stock outstanding immediately
prior to the Effective Time equal to (A) $100.00 plus (B) all accrued and unpaid
dividends on such share of Series G Preferred Stock as of such time.
(31) "Series G Aggregate Preference Amount" means
the Series G Liquidation Preference Amount multiplied by the total number of
shares of Series G Preferred Stock outstanding immediately prior to the
Effective Time.
(32) "Series G Adjustment Amount" means the product
of $1,000,000 multiplied by a fraction, the numerator of which is the Series G
Aggregate Preference Amount and the denominator of which is the amount of
$54,600,000.
(33) "Series G Aggregate Consideration Amount" means
the Series G Aggregate Preference Amount less the Series G Adjustment Amount.
(34) "Series G Exchange Amount" for a share of
Series G Preferred Stock is equal to (x) the Series G Aggregate Consideration
Amount divided by the number of shares of Series G Preferred Stock outstanding
immediately prior to the Effective Time.
(35) "Series H Liquidation Preference Amount" means
an amount per share of Company Series H Preferred Stock outstanding immediately
prior to the Effective Time equal to (A) $200.00 plus (B) all accrued and unpaid
dividends on such share of Series H Preferred Stock as of such time.
(36) "Series H Aggregate Preference Amount" means
the Series H Liquidation Preference Amount multiplied by the total number of
shares of Series H Preferred Stock outstanding immediately prior to the
Effective Time.
(37) "Series H Adjustment Amount" means the product
of $1,000,000 multiplied by a fraction, the numerator of which is the Series H
Aggregate Preference Amount and the denominator of which is the amount of
$54,600,000.
(38) "Series H Aggregate Consideration Amount" means
the Series H Aggregate Preference Amount less the Series H Adjustment Amount.
7
(39) "Series H Exchange Amount" for a share of
Series H Preferred Stock is equal to (x) the Series H Aggregate Consideration
Amount divided by the number of shares of Series H Preferred Stock outstanding
immediately prior to the Effective Time.
(40) "Series G-H Aggregate Consideration Amount"
means the sum of the Series G Aggregate Consideration Amount and the Series H
Aggregate Consideration Amount."
10. FINAL ALLOCATIONS. Schedule 1.4(b) and Schedule 1.11 shall be
updated and agreed in writing by Parent and the Company prior to the Effective
Time to show the final dollar amount allocations as of the Effective Time of the
Merger Consideration, the Initial Cash Consideration, the Escrow Deposit and the
Holdback Amount.
11. DETERMINATION OF REFERENCE DATE. For purposes of the Agreement and
specifically Section 1.7 thereof, the parties acknowledge and agree that the
"Reference Date" shall be September 30, 2004.
12. AMENDMENT OF SECTION 1.7(a). Section 1.7(a) of the Agreement is
hereby stricken and replaced in its entirety with the following:
"(a) Benchmark Working Capital Statement. Attached hereto as
Schedule 1.7(a)-1 is the Net Working Capital Statement of the Company as of
March 31, 2004 (the "Benchmark Working Capital Statement"). As used herein, "Net
Working Capital" means, as of the specified date, on a consolidated basis, the
current assets of the Company less the current liabilities of the Company, as
determined in accordance with this Section 1.7(a). In the calculation of Net
Working Capital as of the last day of the calendar quarter immediately preceding
the Closing Date (the "Reference Date"), (i) Company Transaction Expenses
incurred after March 31, 2004 and prior to or at Closing shall be added back to
Net Working Capital; (ii) the amount of all reductions in the long-term portion
of long-term debt reflected in the Benchmark Working Capital Statement shall be
added back to Net Working Capital; (iii) payments made between March 31, 2004
and the Reference Date for the acquisition of fixed assets purchased after March
31, 2004 shall be added back to Net Working Capital; (iv) the out-of pocket cost
incurred by the Company prior to the Reference Date to terminate the 401(k) Plan
(as hereinafter defined) in accordance with Section 5.15 shall be added back to
Net Working Capital; and (v) the fixed amount of $100,000 shall be added to the
current assets of the Company. The components of Net Working Capital shall be
determined in accordance with this Section 1.7(a) and, except as set forth in
this Section 1.7(a), shall be determined in accordance with United States
generally accepted accounting principles ("GAAP") applied in a manner consistent
with the historical practices of the Company except with respect to a change in
the application of percentage of completion accounting on multi-phase contracts
which has previously been disclosed to the Parent. For the avoidance of doubt,
the obligation to pay Cash Retention Bonuses and Equity Retention Bonuses and
any severance payment obligations of any Acquired Company to any of its
employees that may be made redundant by the Parent after the Closing are
obligations of the Parent and will not be reflected as liabilities of the
Company on the determination of Net Working Capital."
8
13. AMENDMENT OF SECTION 6.4(b). Section 6.4(b) of the Agreement is
hereby stricken and replaced in its entirety with the following:
"(b) Employee Equity Bonuses. As soon as practicable following
the Effective Time and in accordance with Section 6.4(c), Parent shall grant to
the Bonus Employees, under Parent's 2004 Equity Incentive Plan for New Employees
equity retention bonuses in the form of restricted stock units for Parent Common
Stock ("RSUs") covering an aggregate number of shares of Parent Common Stock
that results from dividing $1,700,000 by the average per share closing sales
price (the "Closing Stock Price") of Parent Common Stock, as quoted on the
Nasdaq National Market (and as reported by The Wall Street Journal) for the ten
(10) trading days ending on the second trading day preceding the Closing Date,
as rounded up or down to the nearest whole share. All such RSUs shall vest in
full on the one-year anniversary of the Closing Date, provided the Bonus
Employee remains an employee of the Company (or of any affiliate, including
Parent) through such date."
14. AMENDMENT OF SECTION 11.4. The first sentence of Section 11.4 of the
Agreement is hereby stricken and replaced in its entirety with the following:
"This Agreement may be amended, modified or supplemented only by
a written agreement among Parent, the Acquisition Subsidiary, the Company and
the Preferred Stockholders."
15. AMENDMENT OF SECTION 11.10. The first sentence of Section 11.10 of
the Agreement is hereby stricken and replaced in its entirety with the
following:
"Each of the Preferred Stockholders, the Company and Parent
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof
shall be brought by a party or its successors or assigns and determined in the
federal courts sitting in the Southern District of New York."
16. LEGAL OPINIONS. The form of opinion of counsel required to be
delivered under the Agreement by any party hereto is hereby deemed amended to
cover this Amendment and the Agreement as amended hereby.
17. AGREEMENT REGARDING RE-ALLOCATION OF MERGER CONSIDERATION. Each
Preferred Stockholder acknowledges and agrees that the allocation of the Merger
Consideration in the Agreement, as amended hereby, will not, due to the
allocation of the Series G Adjustment Amount and the Series H Adjustment Amount,
be in accordance with the provisions of the Certificate of Incorporation of the
Company and unconditionally and irrevocably waives any claim, demand or action
against Parent, Acquisition Subsidiary or the Company, or any of their
respective affiliates or representatives, based on such "re-allocation" of the
Merger Consideration. Each Preferred Stockholder acknowledges that it has been
advised to consult with an attorney before executing this Amendment and
otherwise in connection with the Merger, and that such Preferred Stockholder has
done so or, after careful reading and consideration, has chosen not to do so of
such Preferred Stockholder's own volition. Each Preferred Stockholder owning
shares of Series G Preferred Stock or Series H Preferred Stock specifically
acknowledges that such Preferred Stockholder will receive less of the Merger
Consideration with respect to such shares than it would otherwise be entitled to
receive if the Merger Consideration were allocated in accordance with the
provisions of Company's
9
Certificate of Incorporation, due to the allocation of the Series G
Adjustment Amount and the Series H Adjustment Amount.
18. MISCELLANEOUS. The Parties shall execute and deliver all documents,
provide all information and take or refrain from taking any action as may be
necessary or appropriate to achieve the purposes of this Amendment. This
Amendment shall be binding upon and inure to the benefit of the Parties. This
Amendment, together with the Agreement, the Confidentiality Agreement, the
Voting Agreements, the Releases and the Exhibits and Schedules to the Agreement,
constitutes the entire agreement among the Parties pertaining to the subject
matter hereof and supersedes all prior agreements and understandings pertaining
thereto. The terms and provisions of the Agreement shall remain in full force an
effect as amended under this Amendment. This Amendment may be executed in
counterparts, all of which together shall constitute an agreement binding on the
Parties, notwithstanding that all such parties are not signatories to the
original or the same counterpart.
****
10
IN WITNESS WHEREOF, each of the Parties hereto has executed and
delivered this Amendment to be legally binding and effective as of the date
first above written.
PARENT:
TEKELEC
By: /s/ Frederick M. Lax
---------------------------------------
Name: Frederick M. Lax
Title: President and Chief Executive Officer
ACQUISITION SUBSIDIARY:
BUCKDANGER, INC.
By: /s/ Frederick M. Lax
---------------------------------------
Name: Frederick M. Lax
Title: President and Chief Executive Officer
COMPANY:
STELEUS GROUP INC.
By: /s/ Richard E. Mace
---------------------------------------
Name: Richard E. Mace
Title: President and Chief Executive Officer
[SIGNATURES CONTINUE ON NEXT PAGE]
Signature Page to Amendment to Merger Agreement
PREFERRED STOCKHOLDERS:
STRATEGIC PARTNERS, INC.
By: /s/ Kermit L. Stofer
---------------------------------------
Name: Kermit L. Stofer
Title: President
SOFTWARE CONSOLIDATIONS, INC.
By: /s/ Kermit L. Stofer
---------------------------------------
Name: Kermit L. Stofer
Title: President
THE BEACON GROUP III -- FOCUS VALUE
FUND, L.P.
By: Beacon Focus Value Investors, LLC,
Its general partner
By: Focus Value GP, Inc.,
a Member
By: /s/ Thomas G. Mendell
---------------------------------------
Name: Thomas G. Mendell
Title: Managing Director
JAFCO CO., LTD.
By: JAFCO America Ventures, Inc.,
its Attorney-in-Fact
By: /s/ Yoichiro Takami
---------------------------------------
Name: Yoichiro Takami
Title: Chief Financial Officer,
JAFCO America Ventures, Inc.,
Attorney-in-Fact
[SIGNATURES CONTINUE ON NEXT PAGE]
Signature Page to Amendment to Merger Agreement
U.S. INFORMATION TECHNOLOGY
INVESTMENT ENTERPRISE PARTNERSHIP
By: JAFCO America Ventures, Inc.,
its executive partner
By: /s/ Yoichiro Takami
---------------------------------------
Name: Yoichiro Takami
Title: Chief Financial Officer
U.S. INFORMATION TECHNOLOGY NO. 2
INVESTMENT ENTERPRISE PARTNERSHIP
By: JAFCO America Ventures, Inc.,
its executive partner
By: /s/ Yoichiro Takami
---------------------------------------
Name: Yoichiro Takami
Title: Chief Financial Officer
BANCBOSTON INVESTMENTS INC.
By: /s/ David Jeffrey
---------------------------------------
Name: David Jeffrey
Title: Director
[SIGNATURES CONTINUE ON NEXT PAGE]
Signature Page to Amendment to Merger Agreement
GMT COMMUNICATIONS PARTNERS II, L.P.
By: /s/ Terrence Tehranian
--------------------------------------
Name: Terrence Tehranian
--------------------------------------
Title: Managing Partner
--------------------------------------
For and on behalf of
GMT COMMUNICATIONS
PARTNERS II, L.P.
acting by its Manager
GMT Communications Partners Limited
GMT COMMUNICATIONS PARTNERS
(HOLLAND) II, L.P.
By: /s/ Terrence Tehranian
--------------------------------------
Name: Terrence Tehranian
--------------------------------------
Title: Managing Partner
--------------------------------------
For and on behalf of
GMT COMMUNICATIONS
PARTNERS (HOLLAND) II, L.P.
acting by its Manager
GMT Communications Partners Limited
GMT COMMUNICATIONS PARTNERS
(EXECUTIVE FUND) II, L.P.
By: /s/ Terrence Tehranian
--------------------------------------
Name: Terrence Tehranian
--------------------------------------
Title: Managing Partner
--------------------------------------
For and on behalf of
GMT COMMUNICATIONS PARTNERS
(EXECUTIVE FUND) II, L.P.
acting by its Manager
GMT Communications Partners Limited
Signature Page to Amendment to Merger Agreement