EXHIBIT (c) (2)
EXECUTION COPY
STOCKHOLDER AGREEMENT, dated as of January 12, 1998, among
CERTAINTEED CORPORATION, a Delaware corporation ("Parent"), BI
EXPANSION II CORP., a Massachusetts corporation ("Sub"), and the
persons listed on Schedule A hereto (each a "Stockholder", and,
collectively, the "Stockholders").
WHEREAS, Parent, Sub and Bird Corporation, a Massachusetts corporation
(the "Company"), propose to enter into an Agreement and Plan of Merger of even
date herewith (as the same may be amended or supplemented, the "Merger
Agreement") providing for (i) the making of a cash tender offer (as such offer
may be amended from time to time as permitted under the Merger Agreement, the
"Offer") by Sub for (a) all outstanding shares of Common Stock, par value $1 per
share, of the Company (the "Company Common Stock") and (b) all outstanding
shares of $1.85 Cumulative Convertible Preference Stock, par value $1 per share,
of the Company (the "Company Preference Stock") and (ii) the merger of Sub with
the Company (the "Merger");
WHEREAS, each Stockholder is the record and beneficial owner of the
number of shares of Company Common Stock set forth opposite such Stockholder's
name on Schedule A hereto, which number excludes shares issuable upon the
exercise of Options (as such term is defined in the Merger Agreement) held by
such Stockholder; such shares of Company Common Stock, as such shares may be
adjusted by stock dividend, stock split, recapitalization, combination or
exchange of shares, merger, consolidation, reorganization or other change or
transaction of or by the Company, together with shares of Company Common Stock
which may be acquired after the date hereof by such Stockholder, including
shares of Company Common Stock issuable upon the exercise of Options (as the
same may be adjusted as aforesaid), being collectively referred to herein as the
"Common Shares"; and
WHEREAS, each Stockholder is the record and beneficial owner of the
number of shares of Company Preference Stock set forth opposite such
Stockholder's name on Schedule A hereto, which number excludes shares issuable
upon the exercise of Options held by such Stockholder; such shares of Company
Preference Stock, as such shares may be adjusted by stock dividend, stock split,
recapitalization, combination or exchange of shares, merger, consolidation,
reorganization or other change or transaction of or by the
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Company, together with shares of Company Preference Stock which may be acquired
after the date hereof by such Stockholder, including shares of Company
Preference Stock issuable upon the exercise of Options (as the same may be
adjusted as aforesaid), being collectively referred to herein as the "Preference
Shares" and, together with the Common Shares, the "Shares"; and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have requested that the Stockholders enter into this
Agreement;
NOW, THEREFORE, to induce Parent and Sub to enter into, and in
consideration of their entering into, the Merger Agreement, and in consideration
of the premises and the representations, warranties and agreements contained
herein, the parties agree as follows:
1. Purchase and Sale of Shares.
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(a) Each Stockholder hereby severally and not jointly agrees that it
shall tender its Shares into the Offer and that it shall not withdraw any
Shares so tendered (it being understood that the obligation contained in
this sentence is unconditional, subject to Section 8). In addition to, and
not in limitation of the foregoing obligation, each Stockholder hereby
severally and not jointly agrees to sell to Sub, and Sub hereby agrees to
purchase, all such Stockholder's Common Shares at a price per Common Share
equal to $5.50, or such higher price per share of Company Common Stock as
may be offered by Sub in the Offer, and all such Stockholder's Preference
Shares at a price per Preference Share equal to $20, or such higher price
per share of Company Preference Stock as may be offered by Sub in the
Offer. Sub's obligation to purchase is subject to the following conditions
(which may be waived in the sole discretion of Sub): (a) Sub having
accepted shares of Company Common Stock and Company Preference Stock for
payment under the Offer or (b) if the Offer has been terminated for failure
to satisfy the Minimum Condition (as defined in Exhibit A to the Merger
Agreement), (i) all conditions to the Offer set forth in Exhibit A to the
Merger Agreement (other than the Minimum Condition) having been satisfied
and (ii) including all shares of Company Common Stock and Company
Preference Stock tendered and not withdrawn at the time of termination of
the Offer and all Shares to
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be purchased pursuant to this Agreement, the Minimum Condition would have
been satisfied. Notwithstanding the foregoing, no Stockholder shall be
obligated to sell such Stockholder's Shares after the scheduled final
expiration time of the Offer unless (i) the Minimum Condition was not
satisfied, (ii) such Stockholder did not tender such Stockholder's Shares
into the Offer or withdrew such Shares and (iii) including all shares of
Company Common Stock and Company Preference Stock tendered and not
withdrawn at the time of termination of the Offer and all Shares to be
purchased pursuant to this Agreement, the Minimum Condition would have been
satisfied. Each Stockholder may tender such Stockholder's Shares into the
Offer and the purchase of such Shares pursuant to the Offer shall satisfy
such Stockholder's obligation to sell such Shares and Sub's obligation to
purchase such Shares under this Agreement. Subject to satisfaction or
waiver of the conditions set forth in the third sentence of this paragraph,
Sub shall, no later that three days in advance of such closing date,
specify the place, time and date (which shall not precede the final
expiration or termination of the Offer) for the closing of the purchase by
Sub of such Stockholder's Shares.
2. Representations and Warranties of the Stockholders. Each
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Stockholder hereby, severally and not jointly, represents and warrants to Parent
and Sub as follows:
(a) Authority. The Stockholder has all requisite power and authority
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to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by the Stockholder. This Agreement has been duly
executed and delivered by the Stockholder and constitutes a valid and
binding obligation of the Stockholder enforceable against the Stockholder
in accordance with its terms. Except for the expiration or termination of
the waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended (the "HSR Act") and informational filings with the
Securities and Exchange Commission, neither the execution, delivery or
performance of this Agreement by the Stockholder nor the consummation by
the Stockholder of the transactions contemplated hereby
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will (i) require any filing with, or permit, authorization, consent or
approval of, any federal, state or local government or any court, tribunal,
administrative agency or commission or other governmental or regulatory
authority or agency, domestic, foreign or supranational (a "Governmental
Entity"), (ii) result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default under, or give rise
to any right of termination, amendment, cancelation or acceleration under,
or result in the creation of any pledge, claim, lien, charge, encumbrance
or security interest of any kind or nature whatsoever (a "Lien") upon any
of the properties or assets of the Stockholder under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, lease,
license, permit, concession, franchise, contract, agreement or other
instrument or obligation (a "Contract") to which the Stockholder is a party
or by which the Stockholder or any of the Stockholder's properties or
assets, including the Stockholder's Shares, may be bound or (iii) violate
any judgment, order, writ, preliminary or permanent injunction or decree
(an "Order") or any statute, law, ordinance, rule or regulation of any
Governmental Entity (a "Law") applicable to the Stockholder or any of the
Stockholder's properties or assets, including the Stockholder's Shares.
(b) The Shares. The Stockholder's Shares and the certificates
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representing such Shares are now and at all times during the term hereof
will be held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, and the Stockholder has good and marketable
title to such Shares, free and clear of any Liens, proxies, voting trusts
or agreements, understandings or arrangements, except for any such Liens or
proxies arising hereunder. The Stockholder owns of record or beneficially
no shares of Company Common Stock or Company Preference Stock other than
such Stockholder's Shares and shares of Company Common Stock or Company
Preference Stock issuable upon the exercise of Options.
(c) Brokers. No broker, investment banker, financial advisor or
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other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of such Stockholder.
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(d) Merger Agreement. The Stockholder understands and acknowledges
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that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
3. Representations and Warranties of Parent and Sub. Parent and Sub
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hereby jointly and severally represent and warrant to the Stockholders as
follows:
(a) Authority. Parent and Sub have the requisite corporate power and
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authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance
of this Agreement by Parent and Sub and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of Parent and Sub. This Agreement has been
duly executed and delivered by Parent and Sub and constitutes a valid and
binding obligation of Parent and Sub enforceable in accordance with its
terms.
(b) Securities Act. The Shares will be acquired in compliance with,
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and Sub will not offer to sell or otherwise dispose of any Shares so
acquired by it in violation of any of, the Securities Exchange Act of 1934,
as amended, or the registration requirements of the Securities Act of 1933,
as amended.
(c) Financing. Sub has, or will have at the time that any payment is
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required to be made to any Stockholder hereunder, the funds necessary to
make such payment to such Stockholder.
4. Covenants of the Stockholders. Each Stockholder severally and
------------------------------
not jointly agrees as follows:
(a) The Stockholder shall not, except as contemplated by the terms of
this Agreement, (i) sell, transfer, pledge, assign or otherwise dispose of,
or enter into any Contract, option or other arrangement (including any
profit sharing arrangement) or understanding with respect to the sale,
transfer, pledge, assignment or other disposition of, the Shares to any
person other than Sub or Sub's designee, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust, power-of-
attorney or otherwise, with respect to the Shares or
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(iii) take any other action that would in any way restrict, limit or
interfere with the performance of its obligations hereunder or the
transactions contemplated hereby.
(b) Until the Merger is consummated or the Merger Agreement is
terminated, the Stockholder shall not, nor shall the Stockholder permit any
investment banker, financial adviser, attorney, accountant or other
representative or agent of the Stockholder to, directly or indirectly (i)
solicit, initiate or encourage (including by way of furnishing
information), or take any other action designed or reasonably likely to
facilitate, any inquiries or the making of any proposal which constitutes,
or may reasonably be expected to lead to, any takeover proposal (as defined
in the Merger Agreement) or (ii) participate in any discussions or
negotiations regarding any takeover proposal. Without limiting the
foregoing, it is understood that any violation of the restrictions set
forth in the preceding sentence by an investment banker, financial advisor,
attorney, accountant or other representative or agent of the Stockholder
shall be deemed to be a violation of this Section 4(b) by the Stockholder.
5. Grant of Irrevocable Proxy; Appointment of Proxy. (a) Each
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Stockholder hereby irrevocably grants to, and appoints, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, and any other individual who shall
hereafter be designated by Parent, and each of them, such Stockholder's proxy
and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of such Stockholder, to vote such Stockholder's Shares, or grant
a consent or approval in respect of such Shares, at any meeting of Stockholders
of the Company or at any adjournment thereof or in any other circumstances upon
which their vote, consent or other approval is sought, against (i) any merger
agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization, joint
venture, recapitalization, dissolution, liquidation or winding up of or by the
Company and (ii) any amendment of the Company's Articles of Organization or By-
Laws, or other proposal or transaction (including any consent solicitation to
remove or elect any directors of the Company) involving the Company which
amendment or other proposal or transaction would in any manner impede,
frustrate, prevent or nullify, or result in a breach of any covenant,
representation or warranty or any
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other obligation or agreement of the Company under or with respect to, the
Offer, the Merger, the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement.
(b) Each Stockholder represents that any proxies heretofore given in
respect of such Stockholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Each Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Stockholder under this Agreement. Such Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked, subject to Section 8. Such Stockholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 41 of
the Massachusetts Business Corporation Law.
6. Further Assurances. Each Stockholder will, from time to time,
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execute and deliver, or cause to be executed and delivered, such additional or
further transfers, assignments, endorsements, consents and other instruments as
Parent or Sub may reasonably request for the purpose of effectively carrying out
the transactions contemplated by this Agreement and to vest the power to vote
such Stockholder's Shares as contemplated by Section 5. Parent and Sub jointly
and severally agree to use reasonable efforts to take, or cause to be taken, all
actions necessary to comply promptly with all legal requirements that may be
imposed with respect to the transactions contemplated by this Agreement
(including legal requirements of the HSR Act).
7. Assignment. Neither this Agreement nor any of the rights,
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interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that Sub may
assign, in its sole discretion, any or all of its rights, interests and
obligations hereunder to Parent or to any direct or indirect wholly owned
subsidiary of Parent. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Each Stockholder agrees
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that this Agreement and the obligations of such Stockholder hereunder shall
attach to such Stockholder's Shares and shall be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including without limitation such
Stockholder's heirs, guardians, administrators or successors.
8. Termination. This Agreement, and all rights and obligations of
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the parties hereunder, shall terminate upon the earliest of (a) the date upon
which the Merger Agreement is terminated pursuant to Section 9.01(b)(i),
9,01(b)(vi) or 9.01(b)(vii) thereof, (b) the date that is 10 business days after
the later of (i) any other termination of the Merger Agreement or (ii) the
expiration of the Offer at any scheduled final expiration time without the
Minimum Condition being satisfied (provided that the failure to satisfy the
Minimum Condition did not result from any Stockholder's failure to comply with
this Agreement) and (c) the date that Parent or Sub shall have purchased and
paid for the Stockholders' Shares pursuant to Section 1. As soon as practicable
following any termination of this Agreement in accordance with the terms hereof,
any Stockholder's Shares held by or on behalf of Parent or Sub shall be returned
to the Stockholders.
9. Stop Transfer. The Company agrees with, and covenants to, Parent
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and Sub that the Company shall not register the transfer of any certificate
representing any Stockholder's Shares unless such transfer is made in accordance
with the terms of this Agreement.
10. General Provisions.
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(a) Payments. All payments required to be made to any party to this
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Agreement shall be made by wire transfer of immediately available funds to
an account designated by such party at least one trading day prior to such
payment.
(b) Expenses. All costs and expenses incurred in connection with
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this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expense.
(c) Amendments. This Agreement may be amended at any time only by a
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written instrument executed by each of the parties hereto.
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(d) Notice. Any notices and other communications required or
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permitted hereunder shall be in writing and shall be addressed as follows:
(i) if to Parent, to
CertainTeed Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Cravath, Swaine & ▇▇▇▇▇
Worldwide Plaza
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
(ii) if to a Stockholder, to the address set forth under the name of
such Stockholder on Schedule A hereto
or such other address as shall be furnished in writing by either party in
accordance with this Section 10, and any such notice or communication shall
be deemed to have been given as of the date so mailed. Notices or other
communications shall be deemed given (i) if delivered personally, upon
delivery, (ii) if delivered by registered or certified mail (return receipt
requested), upon the earlier of actual delivery or three business days
after being mailed, (iii) if delivered by overnight courier or similar
service, upon delivery, or (iv) if given by fax, upon confirmation of
transmission by fax; provided that if such notice or other communications
would be otherwise deemed given on a day which is not a business day, the
delivery shall be deemed given the first business day following such day.
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(e) Interpretation. When a reference is made in this Agreement to a
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Section, such reference shall be to a Section of this Agreement unless
otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Wherever the words "include", "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation".
(f) Counterparts. This Agreement may be executed in two or more
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counterparts, all of which shall be considered one and the same agreement
and shall become effective when two or more counterparts have been signed
by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
(g) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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(including the documents and instruments referred to herein) (i)
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 and (ii) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
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THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS RULES)
AS TO ALL MATTERS, INCLUDING BUT NOT LIMITED TO, MATTERS OF VALIDITY,
CONSTRUCTION, EFFECT AND PERFORMANCE.
(i) Publicity. Except as otherwise required by law, court process or
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the rules of a national securities exchange or the Nasdaq National Market
or as contemplated or provided in the Merger Agreement, for so long as this
Agreement is in effect, neither any Stockholder nor Parent shall issue or
cause the publication of any press release or other public announcement
with respect to the transactions contemplated by this Agreement or the
Merger Agreement without the consent of the other parties, which consent
shall not be unreasonably withheld.
11. Stockholder Capacity. No person executing this Agreement who is
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or becomes during the term hereof a director or officer of the Company makes any
agreement or
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understanding herein in his or her capacity as such director or officer. Each
Stockholder signs solely in his or her capacity as the record holder and
beneficial owner of, or the trustee of a trust whose beneficiaries are the
beneficial owners of, such Stockholder's Shares.
12. Performance by Sub. Parent covenants and agrees for the benefit
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of the Stockholders that it shall cause Sub to perform in full each obligation
of Sub set forth in this Agreement.
13. Enforcement. The parties agree that irreparable damage would
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occur in the event that any of the provisions of this Agreement 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 Agreement and to enforce specifically
the terms and provisions of this Agreement, this being in addition to any other
remedy to which they are entitled at law or in equity. In addition, each of the
parties hereto waives any right to trial by jury with respect to any claim or
proceeding related to or arising out of this Agreement or any of the
transactions contemplated hereby.
IN WITNESS WHEREOF, each of Parent and Sub has caused this Agreement
to be signed by its officer thereunto duly authorized and each Stockholder has
signed this Agreement, all as of the date first written above.
CERTAINTEED CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BI EXPANSION II CORP.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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STOCKHOLDERS
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ R. ▇▇▇▇▇ ▇▇▇▇
-------------------------------
R. ▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
13
ACKNOWLEDGED AND AGREED
TO AS TO SECTION 9:
BIRD CORPORATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
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Schedule A
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Preference Common
---------- ------
Shares Shares
------ ------
Stockholder Common Preference (converted Underlying
----------- ------ ---------- ---------- ----------
Shares Shares to Common) Options
------ ------ ---------- -------
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 32,624 0 0 34,000
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇ III 289,263 4,000 3,595 22,500
----------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 537,600 9,500 8,539 2,500
----------------------------------------------------------------------
R. ▇▇▇▇▇ ▇▇▇▇ 357,200 114,100 102,562 5,000
----------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 403,323 2,000 1,798 5,000
----------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 46,647 2,600 2,337 155,000
----------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ 4,000 0 0 17,500
--------- ------- ------- -------
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Total: 1,670,657 132,200 118,831 241,500
========= ======= ======= =======
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Total Common Shares assuming all Preference Shares converted and all Options
exercised: 2,030,988