FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND
EQUITYHOLDER AGREEMENTS
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER AND EQUITYHOLDER
AGREEMENTS, dated as of September 19, 2002 (this First Amendment), among
Headwaters Incorporated, a Delaware corporation (Parent), Headwaters Olysub
Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (the
Sub), Industrial Services Group, Inc., a Delaware corporation (the Company), ISG
Resources, Inc., a Utah corporation and a wholly-owned subsidiary of the Company
(the Public Sub), and each of the equityholders listed on the signature pages
hereto (the Equityholders or the Holders),
W I T N E S S E T H:
WHEREAS, Parent, Company, Sub and the Public Sub entered into that
certain Agreement and Plan of Merger dated as of July 15, 2002 (the Merger
Agreement);
WHEREAS, the Parent entered into Equityholder Agreements dated as of
July 15, 2002, with each of the Equityholders (the Equityholder Agreements); and
WHEREAS, the Company, the Public Sub, Parent and the Sub desire to
amend the Merger Agreement and Parent and each of the Equityholders wish to
amend the Equityholder Agreements in each case to reflect new Merger
Consideration and allocation thereof:
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1 Definitions.(a) Capitalized terms used but not otherwise
defined in this Amendment shall have the meanings given them in the Merger
Agreement.
(b) The definition of Aggregate Cash Consideration Value contained in
Section 1.1 of the Merger Agreement is hereby amended and restated in its
entirety as follows:
Aggregate Cash Consideration Value means an amount equal to (i)
$22,700,000 minus (ii) the sum of (A) the amount, if any, by which the Other
Indebtedness as of the Closing Date exceeds $800,000 and (B) the amount, if any,
by which the Transaction Expenses exceed $1.7 million, as such amounts and
differences become final and binding on the Adjustment Determination Date.
(c) The following definitions contained in Section 1.1 of the Merger
Agreement are hereby deleted therefrom: Aggregate Common Cash Merger
Consideration, Aggregate Common Equity Merger Consideration, Aggregate Preferred
Merger Consideration, Aggregate Residual Cash Consideration, Common Per Share
Cash Consideration, Common Per Share Equity Consideration, CVC Warrant Cash
Consideration, CVC Warrant Equity Consideration and Preferred Per Share
Consideration.
(d) Section 1.1 of the Merger Agreement is hereby amended to include
the following additional definition therein:
Amendment Exhibit B means the Exhibit B attached to the First
Amendment to Agreement and Plan of Merger and Equityholder Agreements,
dated as of September 19, 2002 among, inter alia, the parties hereto.
ARTICLE II.
AMENDMENTS TO MERGER AGREEMENT AND EQUITYHOLDER AGREEMENTS
SECTION 2.1 Merger Consideration.Notwithstanding any provision of the
Merger Agreement or the Equityholder Agreements, the Merger Consideration shall
be defined as and comprised of the following:
(a) The Aggregate Cash Consideration Value;
(b) $10,000,000 in aggregate principal amount of Participation
Interests (as defined in the Participation Agreement entered into simultaneously
herewith, the form of which is attached as Exhibit A hereto (the Participation
Interests); and
(c) 2,100,000 shares of Parent Stock.
SECTION 2.2 Allocation of Merger Consideration.The Equityholders and
the other parties to this Amendment each agree that notwithstanding any
provision of the Merger Agreement or the Equityholder Agreements, including
without limitation the rights of any Equityholder under the Articles of
Incorporation of the Company to receive Preferred Liquidation Value, the Merger
Consideration shall be allocated among the respective holders of shares of the
Series A Preferred, Series B Preferred, the Class A Common Shares, the Class B
Common Shares, the CVC Warrants and the Phantom Stock Right as set forth on
Amendment Exhibit B, and to that end:
(a) Section 3.1(a) of the Merger Agreement is hereby amended and
restated in its entirety as follows:
Company Stock. Except for Excluded Company Shares and
Dissenting Shares, and except as provided in the following sentence,
the shares of (i) Series A Preferred Stock, Stock, par value $0.01 per
share of the Company (the Series A Preferred), (ii) Series B Preferred
Stock, par value $0.01 per share, of the Company (the Series B
Preferred and, together with the Series A Preferred, the Preferred
Stock), (iii) Class A Common Stock, par value $0.01 per share of the
Company (each a Class A Common Share), and (iv) Class B Common Stock,
par value $0.01, of the Company (each a Class B Common Share and,
together with the Class A Common Shares, the Common Shares), in each
case issued and outstanding immediately prior to the Effective Time,
shall be converted into the right to receive the Merger Consideration
set forth in Amendment Exhibit B with respect to such shares. At the
Effective Time, all shares of Preferred Stock and all Common Shares
shall cease to be outstanding, shall be canceled and retired and shall
cease to exist, and each certificate formerly representing a share of
Preferred Stock or a Common Share shall thereafter cease to have any
rights with respect to the shares of Preferred Stock or to Common
Shares, except as provided herein or by law. The shares of Parent Stock
issued as Merger Consideration pursuant to this Section 3.1(a) and 3.2
shall be referred to as Merger Shares.
(b) Section 3.1(b) of the Merger Agreement is hereby amended and
restated in its entirety to read as follows: [Intentionally Omitted].
(c) Section 3.1(c) of the Merger Agreement is hereby amended to delete
the phrase An aggregate of Five Hundred Thousand Dollars ($500,000) in cash at
the beginning of the first sentence thereof and replace it with the following
word: None.
(d) Clause (i) of Section 3.2 (b) is hereby amended and restated in its
entirety as follows:
(i) the CVC Warrants and the holders thereof shall be entitled
to receive in the aggregate the Merger Consideration set forth on
Amendment Exhibit B with respect thereto payable in the manner provided
in Section 3.4(a) with respect to Common Shares surrendered at the
Closing and allocated among such holders as set forth on Amendment
Exhibit B and.
(e) The last sentence of Section 6.18 of the Merger Agreement is hereby
amended to delete the phrase in the aggregate for the CVC Warrant Cash
Consideration and the CVC Warrant Equity Consideration.
(f) Each of Sections 7.1(d), 7.2(h) and 7.3(f) of the Merger Agreement
is hereby amended and restated in its entirety to read as follows:
[Intentionally Omitted].
(g) Section 2.2(a) of the Merger Agreement is hereby amended to (i)
delete the phrase at 10:00 a.m. on a date to be specified by the parties hereto,
which date shall be no later than the fifth business day after and substituting
in its stead the word on or before 9:00 a.m. on September 19, 2002, assuming,
and (ii) inserting a comma immediately prior to the phrase at the offices of.
(h) The first sentence of Section 8.2 of the Merger Agreement is hereby
amended to delete the phrase and pro rata basis based on the percentage of
Merger Consideration received by such stockholder or holder of a CVC Warrant and
insert in its stead the following: basis based on the percentages set forth next
to their respective names on Schedule 8.2 to the First Amendment.
SECTION 2.3 Post-Closing Adjustment. The Equityholders and the other
parties to this Amendment each agree that Section 3.3 (c) of the Merger
Agreement is hereby amended and restated in its entirety as follows:
(c) Within ten (10) days following the later of (i) the date the Parent
Financial Data Schedule is accepted by the Holders Representatives, and (ii) the
final, binding and conclusive determination of all disputes with respect to the
Parent Financial Data Schedule as provided in paragraph (d) of this Section 3.3
(such later date, the Adjustment Determination Date), (A) in the event the
Estimated Aggregate Cash Consideration Value is less than the Aggregate Cash
Consideration Value, the Parent shall deliver to former holders of Common Shares
and of the CVC Warrants receiving Merger Consideration, on a pro rata basis
pursuant to Amendment Exhibit B, and (B), in the event the Estimated Aggregate
Cash Consideration Value is greater than the Aggregate Cash Consideration Value,
the former holders of Common Shares and of the CVC Warrants receiving Merger
Consideration shall deliver to Parent, on a pro rata basis pursuant to Amendment
Exhibit B, in each case an aggregate amount in cash equal to the difference
(provided that the aggregate amount to be delivered pursuant to clause (B) shall
not exceed $500,000).
SECTION 2.4 Appropriate Changes to Documentation.All provisions of the
Merger Agreement and Equityholder Agreements and related documents which are
exhibits thereto relating to the authorization, issuance, delivery and receipt
of the Merger Consideration and the components thereto shall be deemed to apply
to the components of the Merger Consideration as described in this Agreement,
including the Participation Interests and the additional shares of Parent Stock.
Notwithstanding the generality of the foregoing, the forms of legal opinions to
be rendered at Closing shall be appropriately modified to reflect the change in
Merger Consideration.
SECTION 2.5 Equityholder Representations and Agreements. Each of the
Equityholders receiving Participation Interests agrees that:
(a) The Participation Interests to be issued to Holder is being
acquired for investment for Holders own account, not as a nominee or agent, and
not with a view to the sale or distribution of any part thereof in violation of
the Securities Act of 1933, and Holder has no present intention of selling,
granting any participation in, or otherwise distributing the same in a manner
that would jeopardize the availability to Parent of the registration exemption
described in Section 2.5(b) below. Holder represents that the entire legal and
beneficial interest of the Participation Interests to be received pursuant to
the Merger Agreement as amended will be held for its account only, and neither
in whole or in part for any other person. By executing this Amendment, Holder
further represents that Holder has no present contract, undertaking, agreement
or arrangement with any person to sell, transfer or grant participation to any
third person, with respect to any of the Participation Interests to be received
by Holder pursuant to the Merger Agreement as amended.
(b) Holder understands and acknowledges that the sale and issuance of
the Participation Interests pursuant to the Merger Agreement as amended is being
effected on the basis that the issuance of such securities is exempt from
registration pursuant to Section 4(2) of the Securities Act of 1933 and Rule 506
under Regulation D promulgated thereunder and that Parents reliance upon such
exemptions is predicated in part upon Holders representations made in this
Amendment, the Equityholder Agreement signed by Holder and the representation
and warranties of Holder and the information contained in Holder Certificate
attached as Exhibit A to the Equityholder Agreement (the Holder Certificate). In
furtherance of the foregoing, Holder represents and warrants to Parent that the
information set forth in Holder Certificate executed and delivered by Holder to
Parent in connection with the execution of the Equityholder Agreement continues
to be true and correct. The Holder Certificate is expressly incorporated by
reference into this Amendment.
(c) Holder further represents that Holder, either acting alone or after
consultation with his or her purchaser representative, legal advisor and tax
advisor: (i) has such knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of Holders investment in the
Participation Interests to be received by Holder pursuant to the Merger
Agreement as amended; (ii) has received or otherwise reviewed copies of Parents
Annual Report on Form 10-K filed with the SEC for the year ending September 30,
2001, Parents quarterly reports on Form 10-Q filed with the SEC for the periods
ending December 31, 2001 and March 31, 2002, Parents definitive proxy statement
for its 2002 Annual Meeting of Stockholders, and Parents current reports filed
on Form 8-Ks dated December 27, 2001 and March 10, 2002 and those public reports
filed by Parent and Public Sub after the date of the Merger Agreement; and (iii)
has received or otherwise reviewed all the information such Holder has requested
from Parent and the Company that such Holder considers necessary or appropriate
in making the investment decision in connection with the Merger, including
having the opportunity to ask questions of and receive answers from, Parent, its
employees, and representatives, concerning financial affairs of Parent, and all
questions which have been asked have been answered and; and (iv) has the ability
to bear the economic risks of Holders investment. Holder acknowledges and agrees
that Holder has conducted its, his or her own independent review and analysis of
Parent. Holder is relying solely on that investigation and on the
representations and warranties of Parent set forth in this Amendment and the
Equityholder Agreement, and Parent shall not be deemed to have made any
representations or warranties to Holder other than as set forth herein.
(d) Holder has had an opportunity to review with its own tax advisors
the tax consequences to Holder of the Merger and the Transactions, including the
change in the Merger Consideration and the issuance of the Participation
Interests. Holder understands that it must rely solely on its advisors and not
on any statements or representations by Parent, the Company or any of their
respective attorneys, investment advisors, accountants or other agents with
respect to tax matters. Holder agrees and acknowledges that Parent is delivering
to the Company the tax opinion referred to in Section 7.2(g) of the Merger
Agreement for the Companys review purposes only and under no circumstances will
Holder or any other Person, other than the addressee of such opinion, rely on
such opinion or the matters contained therein.
ARTICLE III.
GENERAL PROVISIONS
SECTION 3.1 Counterparts.This Amendment may be executed in
counterparts, all of which shall be considered one and the same agreement, and
shall only become effective when one or more counterparts have been signed by
each of the parties and delivered to the other parties.
SECTION 3.2 Entire Agreement; No Third-Party Beneficiaries.Except for
the Confidentiality Letter, the Merger Agreement, the Equityholder Agreements
and the agreements that are exhibits thereto, this Amendment (including the
Exhibits thereto) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof; provided, however, that it is expressly
agreed that the Transactions do not violate any provision of the Confidentiality
Letter. This Amendment is not intended to confer upon any person other than the
parties hereto any rights or remedies hereunder; provided that it is intended
that the Charter Indemnified Parties and the Company Indemnitees are third-party
beneficiaries with respect to the provisions of Section 6.6 and Article VIII of
the Merger Agreement, respectively. Except as expressly amended or modified by
this First Amendment, the provisions of the Merger Agreement and each
Equityholder Agreement remain in full force and effect.
SECTION 3.3 Governing Law.This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Utah, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof; provided that any questions regarding interpretation of provisions
of the DGCL, including with respect to Articles II and III of the Merger
Agreement as amended hereby, shall be governed by the laws of the State of
Delaware.
SECTION 3.4 Assignment.Neither this Amendment nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, except that the
Sub may assign, in its sole discretion, any of or all its rights, interests and
obligations under this Amendment to Parent or to any direct or indirect wholly
owned Subsidiary of Parent, but no such assignment shall relieve Parent of any
of its obligations hereunder. Subject to the preceding sentence, this Amendment
shall be binding upon, inure to the benefit of, and be enforceable by, the
parties and their respective successors and assigns.
SECTION 3.5 Severability.If any term or other provision of this
Amendment is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Amendment shall
nevertheless remain in full force and effect so long as the economic and legal
substance of the Transactions are not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties shall negotiate in
good faith to modify this Amendment so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
Transactions may be consummated as originally contemplated to the fullest extent
possible.
SECTION 3.6 Enforcement of This Amendment.The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Amendment were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Amendment and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state having jurisdiction, such remedy being in addition to any
other remedy to which any party is entitled at law or in equity. Nothing in this
Amendment shall impair the right of any party to compel specific performance by
another party of its obligations under this Amendment.
SECTION 3.7 Obligations of Subsidiaries.Whenever this Amendment
requires any Subsidiary of Parent (including the Sub) or of the Company to take
any action, such requirement shall be deemed to include an undertaking on the
part of Parent or the Company, as the case may be, to cause such Subsidiary to
take such action.
SECTION 3.8 Waiver of Right to Jury Trial.COMPANY, PUBLIC SUB, PARENT,
THE SUB AND THE EQUITYHOLDERS HEREBY WAIVE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS AMENDMENT, ANY OTHER AGREEMENT
CONTEMPLATED HEREBY OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR
ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, Parent, Sub, Company, Public Sub and the
Equityholders have caused this Amendment to be signed by their respective
officers thereunto duly authorized all as of the date first written above.
HEADWATERS INCORPORATED
By /s/ Kirk A. Benson
---------------------------------------
Name: Kirk A. Benson
Title: Chief Executive Officer
HEADWATERS OLYSUB INCORPORATED
By /s/ Kirk A. Benson
---------------------------------------
Name: Kirk A. Benson
Title: President
INDUSTRIAL SERVICES GROUP, INC.
By /s/ R. Steve Creamer
---------------------------------------
Name: R. Steve Creamer
Title: Chief Executive Officer
ISG RESOURCES, INC.
By /s/ R. Steve Creamer
---------------------------------------
Name: R. Steve Creamer
Title: Chief Executive Officer
EQUITYHOLDERS CITICORP VENTURE CAPITAL, LTD.
By /s/ Joseph M. Silvestri
---------------------------------------
Name: Joseph M. Silvestri
Title: Vice President
CCT PARTNERS IV, L.P.
By /s/ Anthony P. Mirra
---------------------------------------
Name: Anthony P. Mirra
Title: Secretary CCT IV Corporation, G.P.
NATASHA PARTNERSHIP
By /s/ William T. Comfort
---------------------------------------
Name: William T. Comfort
Title: General Partner
/s/ Richard M. Cashin, Jr.
---------------------------------------
Richard M. Cashin, Jr.
/s/ David F. Thomas
---------------------------------------
David F. Thomas
/s/ Joseph M. Silvestri
---------------------------------------
Joseph M. Silvestri
/s/ R. Steve Creamer
---------------------------------------
R Steve Creamer
/s/ Raul A. Deju
---------------------------------------
Raul A. Deju
/s/ Brett A. Hickman
---------------------------------------
Brett A. Hickman
CREAMER INVESTMENTS, INC.
By /s/ R. Steve Creamer
---------------------------------------
Name: R. Steve Creamer
Title: President and CEO
/s/ J. I. Everest, II
---------------------------------------
J.I. Everest, II
Schedule 8.2
Holders Indemnification Percentages
------- ---------------------------
Citicorp Venture Capital, Ltd 38.25%
CCT Partners IV, L.P. 6.75%
Natasha Partnership 1.6%
Richard M. Cashin, Jr. 1.6%
David F. Thomas 1.6%
Joseph M. Silvestri 0.2%
Brett Hickman 1.0%
Chip Everest 2.45%
Raul A. Deju 7.55%
Steve Creamer 1.6%
RACT 37.4%
EXHIBIT B
Allocation of Merger Consideration
I. AGGREGATE CASH CONSIDERATION VALUE
$22,700,000
II. PHANTOM STOCK RIGHT MERGER CONSIDERATION
Phantom Stock Right Holder Consideration
Michael Adams $452,000
III. PREFERRED STOCK MERGER CONSIDERATION
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Preferred Stock Shareholder Number of Outstanding Shares Total Preferred Stock Merger Total Preferred Stock Merger
of Preferred Stock Held Consideration (Cash) Consideration (Parent Stock
Shares)
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
CVC (Series A Preferred)
- ----------------------------------------------------------------------------------------------------------------------------------
Citicorp Venture Capital, Ltd. 41,813.25 $3,271,320.00 282,739
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
CCT Partners IV 4,731.75 $288,773.60 49,895
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Natasha Partnership 1,121.60 $68,450.00 11,827
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Richard M. Cashin, Jr. 1,121.60 $68,450.00 11,827
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
David F. Thomas 1,121.60 $68,450.00 11,827
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Joseph M. Silvestri 140.20 $8,556.30 1,478
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Subtotal (Series A) 50,050 $3,773,999.90 369,593
================================== =============================== =============================== ===============================
2
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Preferred Stock Shareholder Number of Outstanding Shares Total Preferred Stock Merger Total Preferred Stock Merger
of Preferred Stock Held Consideration (Cash) Consideration (Parent Stock
Shares)
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Management (Series B Preferred)
- ----------------------------------------------------------------------------------------------------------------------------------
Brett Hickman 1,000.5 $169,259.24 0
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
J. I. Everest, II 3,587 $441,421.21 0
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Raul A. Deju 5,023 $721,365.40 0
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
R Steve Creamer 8,700 $948,262.88 0
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Creamer Investments, Inc. (f/k/a 31,689.5 $6,177,779.58 0
Ract, Inc.)
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Subtotal (Series B) 50,000 $8,458,088.31 0
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
TOTAL (Series A & B) 100,050.00 $12,232,088.21 369,593
================================== =============================== =============================== ===============================
IV. CLASS A COMMON STOCK MERGER CONSIDERATION
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Class A Common Stock Shareholder Number of Outstanding Total Class A Common Total Class A Common Stock Total Class A Common
Shares of Class A Stock Merger Merger Consideration Stock Merger
Common Stock Held Consideration (Cash) (Principal Amount of Consideration (Parent
Participation Interests) Stock Shares)
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Brett Hickman 4,950 $198,315.05 $223,740.00
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
J. I. Everest, II 11,900 $476,757.40 $537,880.00
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Raul A. Deju 45,317 $1,815,564.28 $748,328.40 100,000
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Creamer Investments, Inc. (f/k/a 187,833 $7,525,274.96 $8,490,051.60
Ract, Inc.)
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Citicorp Venture Capital, Ltd. 187,425 1,222,317
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
CCT Partners IV 33,075 215,703
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Natasha Partnership 7,840 51,130
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Richard M. Cashin, Jr. 7,840 51,130
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
David F. Thomas 7,840 51,130
- ---------------------------------- ---------------------- ----------------------- --------------------------- ----------------------
Joseph M. Silvestri 980 6,391
================================== ====================== ======================= =========================== ======================
TOTAL 495,000 $10,015,911.69 $10,000,000 1,697,801
================================== ====================== ======================= =========================== ======================
3
V. CLASS B COMMON STOCK MERGER CONSIDERATION
None.
VI. CVC WARRANT MERGER CONSIDERATION
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
CVC Warrantholder Underlying Shares of Class A Aggregate Exercise Price1 Total CVC Warrant Merger
Common Stock Consideration (Parent Stock
Shares)
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Citicorp Venture Capital, Ltd. 3,825 $38.25 24,945
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
CCT Partners IV 675 $6.75 4,402
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Natasha Partnership 160 $1.60 1,043
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Richard M. Cashin, Jr. 160 $1.60 1,043
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
David F. Thomas 160 $1.60 1,043
- ---------------------------------- ------------------------------- ------------------------------- -------------------------------
Joseph M. Silvestri 20 $0.20 130
================================== =============================== =============================== ===============================
TOTAL 5,000 $50.00 32,606
================================== =============================== =============================== ===============================
Note: Above Class A Common Stock Merger Consideration and CVC Warrants Consideration is subject to adjustment pursuant to
Section 3.3 of the Merger Agreement. Payments to or from holders of Class A Common shares and CVC Warrants shall be
apportioned based on the number of Class A Common shares held (or, in the case of the CVC Warrants, underlying CVC
Warrants held) thereby.
- ----------------------
1 To be paid separately by the respective holders.
4