Exhibit 2.1
PLAN OF MERGER AND EXCHANGE AGREEMENT
EXECUTION COPY
================================================================================
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
PLAN OF MERGER AND EXCHANGE AGREEMENT
Dated as of August 2, 1999
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I
MERGER OF MERGER SUB INTO NBMI..................................................................2
1.1 The Merger.............................................................................2
1.2 Effective Time.........................................................................3
1.3 Organizational Matters.................................................................3
1.4 Effect on Capital Stock................................................................3
1.5 Exchange of Shares.....................................................................4
1.6 Existing Stockholders Agreement........................................................4
1.7 NBMI Shareholder Approval; No Appraisal Rights.........................................4
1.8 Merger Sub Shareholder Approval........................................................4
ARTICLE II
EXCHANGE OF NB LLC INTERESTS....................................................................5
2.1 The Exchange...........................................................................5
2.2 Termination of Rights..................................................................5
2.3 Consent of Executive Committee.........................................................6
2.4 Consent to Transaction; No Appraisal Rights............................................6
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE FOUNDER STOCKHOLDERS........................................................................6
3.1 Organization, Authorization and Validity of Basic Agreements...........................6
3.2 Title..................................................................................7
3.3 No Conflicts...........................................................................7
3.4 Investment Purpose.....................................................................7
3.5 Access to Information..................................................................8
3.6 Evaluation of and Ability to Bear Risks................................................8
3.7 No Liabilities in Excess of Tax Basis..................................................8
3.8 No Dispositions........................................................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY, MERGER SUB AND NBMI................................................................8
i
4.1 Organization and Good Standing.........................................................9
4.2 Capital Stock; Preemptive Rights.......................................................9
4.3 Authorization and Validity of Agreements...............................................9
4.4 No Conflicts; Consents.................................................................9
4.5 Purchase for Investment...............................................................10
4.6 No Prior Operations...................................................................10
ARTICLE V
COVENANTS......................................................................................10
5.1 No Transfers Prior to Closing.........................................................10
5.2 Tax Matters. ........................................................................10
5.3 Further Assurances....................................................................11
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF THE COMPANY, MERGER SUB, NBMI AND OF
THE FOUNDER STOCKHOLDERS.......................................................................11
6.1 Conditions to the Obligations of the Parties..........................................11
6.2 Conditions to the Obligations of the Company,
Merger Sub and NBMI...................................................................12
6.3 Conditions to the Obligations of the Founder Stockholders.............................12
ARTICLE VII
THE CLOSING....................................................................................13
7.1 Closing Date..........................................................................13
7.2 Closing Deliveries....................................................................13
ARTICLE VIII
DEFINITIONS....................................................................................13
ARTICLE IX
POWER OF ATTORNEY..............................................................................16
9.1 Authority.................................................................................16
9.2 Terms.....................................................................................17
ii
ARTICLE X
MISCELLANEOUS..................................................................................18
10.1 Notices...............................................................................18
10.2 Termination...........................................................................18
10.3 Obligations of Founder Stockholders...................................................19
10.4 Amendments; Waivers...................................................................19
10.5 Severability..........................................................................19
10.6 Representatives, Successors and Assigns...............................................19
10.7 Governing Law.........................................................................20
10.8 Specific Performance..................................................................20
10.9 Arbitration...........................................................................20
10.10 Tax Indemnity; Tax Refunds............................................................21
10.11 Submission to Jurisdiction; Waiver of Immunity........................................21
10.12 Execution in Counterparts.............................................................22
10.13 Entire Agreement......................................................................22
Schedule I
Schedule II
iii
PLAN OF MERGER AND
EXCHANGE AGREEMENT
This PLAN OF MERGER AND EXCHANGE AGREEMENT (this "AGREEMENT") is dated
as of August 2, 1999, by and among (I) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc., a Delaware
corporation (the "COMPANY"); (II) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sub Inc., a New York
corporation ("MERGER SUB"); (III) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc., a New York
corporation ("NBMI"); (IV) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC, a Delaware limited liability
company ("NB LLC"); (V) the Principals (as defined below) listed on Schedule I
hereto; and (VI) the Family Affiliates (as defined below) listed on Schedule II
hereto. Capitalized terms used herein have their respective meanings set forth
in Article VIII of this Agreement.
W I T N E S S E T H :
WHEREAS, the Principals and Family Affiliates (together, the "FOUNDER
STOCKHOLDERS") own all of the limited liability company interests in NB LLC, and
the Principals are the only shareholders of NBMI;
WHEREAS, the Company is a Delaware corporation having authorized
capital of 250,000,000 shares of common stock, par value $.01 (the "COMMON
STOCK"), of which no shares are issued and outstanding on the date hereof, and
5,000,000 shares of preferred stock, par value $.01, of which no shares are
issued and outstanding on the date hereof;
WHEREAS, Merger Sub is a wholly-owned subsidiary of the Company;
WHEREAS, the Company, Merger Sub, NBMI and the Principals, in their
capacity as shareholders of NBMI, desire to have Merger Sub merge with and into
NBMI (the "MERGER") on terms and conditions and for the consideration described
in this Agreement;
WHEREAS, in furtherance of such Merger, the Boards of Directors of the
Company, Merger Sub and NBMI and the shareholders of NBMI have approved the
Merger upon terms and subject to the conditions set forth in this Agreement;
WHEREAS, the Founder Stockholders desire to exchange their respective
interests in NB LLC for shares of Common Stock (the "EXCHANGE") on the terms and
for the consideration described in this Agreement;
WHEREAS, the Executive Committee of NB LLC has consented to the
Exchange;
WHEREAS, as a result of the Merger and Exchange, NB LLC and NBMI will
become wholly-owned direct subsidiaries of the Company and Merger Sub would
cease to exist; and
WHEREAS, for U.S. federal income tax purposes, it is intended that the
Exchange will qualify as a tax-free exchange under Section 351 of the Internal
Revenue Code of 1986, as amended (the "CODE") and that the Merger will qualify
as a reorganization within the meaning of Sections 368(a)(1)(A) and 368(a)(2)(E)
of the Code.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and provisions herein contained and for good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
MERGER OF MERGER SUB INTO NBMI
1.1 THE MERGER. In accordance with and subject to the terms and
provisions of this Agreement and the BCL, at the Effective Time: (I) Merger Sub
shall be merged with and into NBMI, the separate existence of Merger Sub shall
cease and NBMI shall be the surviving corporation (the "SURVIVING CORPORATION")
and shall continue its corporate existence under the laws of New York under the
name "▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc."; (II) all rights, privileges,
immunities, powers, purposes, franchises, properties and assets of Merger Sub
and NBMI shall vest in the Surviving Corporation; and (III) all debts,
liabilities, obligations, restrictions, disabilities and duties of Merger Sub
and NBMI shall become the debts, liabilities, obligations, restrictions,
disabilities and duties of the Surviving Corporation. Merger Sub will use its
best efforts to ensure that the foregoing liabilities of Merger Sub described in
(iii) will, on the Closing Date, be transferred to the Surviving Corporation.
The Merger shall have the effects set forth in Section 906 of the BCL.
2
1.2 EFFECTIVE TIME. Upon the terms and subject to the conditions of
this Agreement, following the satisfaction or waiver of the conditions set forth
in Article VI, NBMI and Merger Sub shall execute and file a Certificate of
Merger (together with any other documents required by applicable law to
effectuate the Merger) with the Secretary of State of the State of New York in
accordance with applicable provisions of the BCL. Prior to such time, a closing
(the "CLOSING") will be held in accordance with Article VII hereof. The Merger
shall become effective simultaneously with the filing of such Certificate of
Merger pursuant to Section 906 of the BCL. The date and time when the Merger
shall become effective is referred to in this Agreement as the "EFFECTIVE TIME."
1.3 ORGANIZATIONAL MATTERS. (a) CERTIFICATE OF INCORPORATION. The
Amended and Restated Certificate of Incorporation of NBMI, as in effect
immediately prior to the Effective Time, shall be the certificate of
incorporation of the Surviving Corporation until thereafter changed or amended
as provided therein or by applicable law.
(b) BY-LAWS. The NBMI By-Laws as in effect immediately prior to the
Effective Time shall be the by-laws of the Surviving Corporation, until
thereafter changed or amended as provided therein or by applicable law.
(c) DIRECTORS AND OFFICERS. From and after the Effective Time, the
directors and officers of NBMI immediately prior to the Effective Time shall be
the directors and officers, respectively, of the Surviving Corporation, each to
hold office in accordance with the certificate of incorporation and by-laws of
the Surviving Corporation until his or her successor is elected or appointed, as
the case may be, and qualified or until his or her earlier death, resignation,
disqualification or removal.
1.4 EFFECT ON CAPITAL STOCK. As of the Effective Time, by virtue of the
Merger and without any action on the part of any holder of shares of NBMI Stock
or the Company:
(a) CAPITAL STOCK OF MERGER SUB. Each issued and outstanding
share of capital stock of Merger Sub shall be converted into and become
one fully paid and nonassessable share of common stock, par value $0.01
per share, of the Surviving Corporation;
(b) CANCELLATION OF TREASURY STOCK. Each NBMI Share that is
owned by NBMI shall automatically be canceled and retired and shall
cease to exist, and no consideration shall be delivered in exchange
therefor;
(c) CONVERSION OF NBMI COMMON STOCK. Each share of NBMI Stock
(other than shares held in the treasury of NBMI) shall be converted
into the right
3
to receive from the Company the number of shares of Common Stock equal
to the quotient of (I) 8,270,281 divided by (II) the number of shares
of NBMI issued and outstanding (other than shares held in the Treasury
of NBMI) at the Effective Time (the "MERGER CONSIDERATION"); and
(d) NO RIGHTS AS STOCKHOLDERS. The holders of certificates
representing shares of NBMI Stock shall as of the Effective Time cease
to have any rights as stockholders of NBMI and, except as aforesaid,
their sole right shall be the right to receive their share of the
Merger Consideration, as determined and paid in the manner set forth in
this Agreement.
1.5 EXCHANGE OF SHARES. From and after the Effective Time,
each holder of an outstanding certificate or certificates which prior thereto
represented outstanding shares of NBMI Stock (the "CERTIFICATES") shall, upon
surrender to the Company of such Certificates (accompanied by all requisite
stock transfer stamps) and acceptance thereof by the Company, be entitled to the
Merger Consideration into which the aggregate number of shares of NBMI Stock
previously represented by such Certificate or Certificates surrendered shall
have been converted pursuant to this Agreement. Until surrendered in accordance
with the provisions of this Section 1.5, from and after the Effective Time, each
Certificate (other than Certificates representing former shares of NBMI Stock
held in the treasury of the Surviving Corporation) shall represent for all
purposes only the right to receive a portion of the Merger Consideration as
determined and paid in the manner set forth in this Agreement. After the
Effective Time there shall be no transfers on the stock transfer books of the
Surviving Corporation of the shares of NBMI Stock that were outstanding
immediately prior to the Effective Time.
1.6 EXISTING STOCKHOLDERS AGREEMENT. NBMI and the Principals,
being all of the parties to the Stockholders' Agreement of NBMI dated as of
December 31, 1990 (the "NBMI STOCKHOLDERS' AGREEMENT"), hereby agree that,
effective as of the Effective Time, without any further action of any Person,
such agreement shall be terminated.
1.7 NBMI SHAREHOLDER APPROVAL; NO APPRAISAL RIGHTS. Each
Principal, in his or her capacity as a shareholder of NBMI, in accordance with
Article IV, section 5 of the NBMI By-Laws and section 615 of the BCL, which
provide for actions by written consent, hereby (I) consents to and approves the
Merger, (II) waives any right to notice of any shareholder action and (III)
waives any right to receive payment of the fair value or other rights and
benefits that may be available to shareholders of a New York corporation
pursuant to section 623 of the BCL.
1.8 MERGER SUB SHAREHOLDER APPROVAL. The Company in its
capacity as sole shareholder of Merger Sub in accordance with section 1.9 of the
By-Laws of Merger
4
Sub and section 615 of the BCL, hereby (I) consents to and approves the Merger
and (II) waives any right to notice of any shareholder action.
ARTICLE II
EXCHANGE OF NB LLC INTERESTS
2.1 THE EXCHANGE. (a) ASSIGNMENT OF NB LLC INTERESTS. Each
Founder Stockholder hereby assigns and delivers to the Company, as of the
Effective Time, all right, title and interest in, to and with respect to the NB
LLC Interest held by such Founder Stockholder, including without limitation (I)
all allocations of profits and losses (and all distributions of cash or other
property) in respect of such NB LLC and (II) all other rights otherwise accruing
to the Founder Stockholder by virtue of owning such NB LLC Interest. From and
after the Effective Time, the entire capital account and share of profits and
losses of each Founder Stockholder shall be deemed to be the capital account and
share of profits and losses of the Company, and the Founder Stockholders shall
have no further interest or rights of any kind in or with respect to any of the
NB LLC Interests.
(b) ACCEPTANCE, ETC. The Company hereby accepts, as of the
Effective Time, the assignment of the NB LLC Interests and assumes and agrees to
perform and be bound by, as of the Effective Time, any and all of the
conditions, covenants and obligations of the Founder Stockholders pursuant to
the NB LLC Agreement as if the Company had executed the NB LLC Agreement
originally with respect to the NB LLC Interests. At the Effective Time, the
Company shall become the sole member of NB LLC, and each Founder Stockholder
shall be released from all obligations under the NB LLC Agreement.
(c) EXCHANGE OF COMMON STOCK. Immediately after the Effective
Time, each Founder Stockholder shall receive in consideration for the exchange
of such Founder Stockholder's NB LLC Interest, the number of shares of Common
Stock equal to the product of 34,229,719 and such Founder Stockholder's
Operations Percentage (as defined in the NB LLC Agreement).
2.2 TERMINATION OF RIGHTS. Each Founder Stockholder hereby
affirms and agrees that, from and after the Effective Time, such Founder
Stockholder shall have no rights under the NB LLC Agreement, including, without
limitation, any rights under Section 13 thereof relating to a sale of NB LLC
and/or an NB Group Affiliate (as defined in the NB LLC Agreement) and/or a
division of NB LLC.
5
2.3 CONSENT OF EXECUTIVE COMMITTEE. By its execution hereof,
NB LLC acknowledges that the Executive Committee of NB LLC approves of the form
of this Agreement, acknowledges receipt of a duly executed copy of the same,
consents to the assignment of all of the NB LLC Interests to the Company in
accordance with Section 4.5 of the NB LLC Agreement and consents to the
admission of the Company as a New Member of NB LLC in accordance with Section
4.7 of the NB LLC Agreement.
2.4 CONSENT TO TRANSACTION; NO APPRAISAL RIGHTS. Each of the
undersigned Founder Stockholders, together constituting all of the holders of
limited liability company interests in NB LLC, hereby assents to the terms,
conditions and transactions contemplated hereby and acknowledges that such
Founder Stockholder shall not, as a result of such terms, conditions and
transactions, have any right to receive payment of the fair value of any
interest such Member may be deemed to have in ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Trust Company
or otherwise be entitled to any other rights and benefits referred to in Section
143-a(4) of the New York Banking Law, as amended, or otherwise as may be deemed
to result from NB LLC's ownership of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Trust Company of
Delaware.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
THE FOUNDER STOCKHOLDERS
Each Founder Stockholder hereby severally represents and
warrants to the Company as follows:
3.1 ORGANIZATION, AUTHORIZATION AND VALIDITY OF BASIC
AGREEMENTS. (a) ENTITIES. If such Founder Stockholder is not a natural person,
(I) such Founder Stockholder is duly formed or organized, validly existing and
in good standing under the laws of the jurisdiction in which such Founder
Stockholder was formed or organized; (II) such Founder Stockholder has the full
legal right, power and authority required to enter into and deliver this
Agreement and the Stockholders Agreement and to consummate the transactions
contemplated hereby and thereby; and (III) this Agreement and the Stockholders
Agreement have been duly authorized, executed and delivered by such Founder
Stockholder, and each is a legal, valid and binding obligation of such Founder
Stockholder enforceable against such Founder Stockholder in accordance with
their terms.
(b) NATURAL PERSONS. If such Founder Stockholder is a natural
person, (I) such Founder Stockholder is of sound mind and has full legal
capacity to enter into, execute and deliver this Agreement and the Stockholders
Agreement and perform his or
6
her obligations hereunder and thereunder, and (II) this Agreement and the
Stockholders Agreement have been duly executed and delivered by such Founder
Stockholder and are legal, valid and binding obligations of such Founder
Stockholder enforceable against such Founder Stockholder in accordance with
their terms.
3.2 TITLE. Such Founder Stockholder owns, beneficially and of
record, the NB LLC Interest held by such Founder Stockholder free and clear of
any Liens; at the Effective Time, the Company will acquire good and valid title
to such NB LLC Interest, free and clear of any Liens other than any Lien created
by the Company; and, if such Founder Stockholder is a Principal, such Founder
Stockholder owns, beneficially and of record, the number of shares of NBMI Stock
set forth opposite such Founder Stockholder's name on Schedule I free and clear
of any Liens other than any Lien created by the Company.
3.3 NO CONFLICTS. Except for the applicable requirements under
the HSR Act, the rules and regulations of the NYSE, the New York Banking Law and
the Delaware banking law, the execution, delivery and performance of this
Agreement and the Ancillary Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with, contravene, result in a
violation or breach of or default under (with or without the giving of notice or
the lapse of time or both), permit any party to terminate, amend or accelerate
the provisions of, or result in the imposition of any Lien (or any obligation to
create any Lien) upon any of the property or assets of such Founder Stockholder
under (A) any Contract to which such Founder Stockholder is a party or by which
any of its property or assets may be bound or (B) any provision of any
partnership agreement, trust agreement or other organizational document of any
such Founder Stockholder that is not a natural person.
3.4 INVESTMENT PURPOSE. Such Founder Stockholder is acquiring
shares of Common Stock under this Agreement for its own account for investment
purposes, and not with a view to, or for resale in connection with, any
distribution thereof other than in compliance with the Securities Act and other
applicable securities laws. Such Founder Stockholder acknowledges that it must
bear the economic risk of an investment in the Founder Shares for an indefinite
period of time because, among other reasons, the Founder Shares have not been
registered under the Securities Act and, therefore, such shares cannot be sold
unless subsequently registered under the Securities Act or an exemption from
such registration is available. Such Founder Stockholder understands that the
Founder Shares will be subject to the provisions of a Stockholders Agreement,
which defines certain rights of the stockholders of the Company and provides
certain restrictions on the transferability of the Founder Shares. Such Founder
Stockholder also acknowledges that transfers of the Founder Shares are further
restricted by applicable United States federal and state and foreign securities
laws.
7
3.5 ACCESS TO INFORMATION. Such Founder Stockholder
understands the risks of, and other considerations relating to, its acquisition
and ownership of the Founder Shares. Such Founder Stockholder has been provided
an opportunity to ask questions of, and has received answers satisfactory to it
from, the Company and its representatives regarding the Founder Shares, and has
obtained any and all additional information from the Company and its
representatives that such Founder Stockholder deems necessary regarding the
Founder Shares.
3.6 EVALUATION OF AND ABILITY TO BEAR RISKS. Such Founder
Stockholder has such knowledge and experience in financial affairs that it is
capable of evaluating the merits and risks of, and other considerations relating
to, the ownership of the Founder Shares, and has not relied in connection with
its acquisition of the Founder Shares upon any representations, warranties or
agreements other than those set forth in this Agreement. Such Founder
Stockholder's financial situation is such that it can afford to bear the
economic risk of holding the Founder Shares for an indefinite period of time,
and such Founder Stockholder can afford to suffer the complete loss of its
investment in the Shares.
3.7 NO LIABILITIES IN EXCESS OF TAX BASIS. Such Founder
Stockholder's tax basis in its NB LLC Interests, is equal to or greater than
such Founder Stockholder's share of NB LLC's liabilities determined under
Section 752 of the Code.
3.8 NO DISPOSITIONS. No Founder Stockholder has any present
plan, intention or arrangement to dispose of any of the Founder Shares to be
received by such Founder Stockholder except as described in any registration
statement on Form S-1 to be filed by the Company in respect of an initial public
offering of its shares. For purposes of this Section 3.8, a disposition shall
include a Transfer and shall include any other transaction (including, without
limitation, a short-sale-against-the-box, forward sale, equity swap or other
derivative contract) which transfers a substantial portion of the opportunity
for gain and risk of loss with respect to such Founder Shares to a person who
was not a Founder Stockholder immediately prior to the date hereof.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY, MERGER SUB AND NBMI
The Company, Merger Sub and NBMI jointly and severally
represent and warrant to the Founder Stockholders as follows:
8
4.1 ORGANIZATION AND GOOD STANDING. Each of the Company,
Merger Sub and NBMI is a corporation duly organized, validly existing and in
good standing under the laws of, in the case of the Company, the State of
Delaware and, in the case of Merger Sub and NBMI, the State of New York. NBMI
was organized under the name "Cedar Street Consultants, Inc." on October 27,
1970.
4.2 CAPITAL STOCK; PREEMPTIVE RIGHTS. (a) CAPITAL STOCK. The
authorized capital stock of the Company consists of 250,000,000 shares of Common
Stock of which no shares are currently issued and outstanding, and 5,000,000
shares of preferred stock, par value $.01, of which no shares are currently
issued and outstanding. The authorized capital stock of Merger Sub consists of
100 shares of common stock, par value $.01, of which all shares are currently
issued and outstanding. The authorized capital stock of NBMI consists of 34,484
shares of NBMI Stock of which 12,500 shares are currently issued and
outstanding. The Founder Shares when so issued will be duly and validly
authorized and issued, fully paid and nonassessable.
(b) PREEMPTIVE RIGHTS. Except for the NBMI Stockholders'
Agreement, there are no preemptive or similar rights on the part of any Person
with respect to the issuance of any shares of capital stock of the Company,
Merger Sub or NBMI. Except for this Agreement, the NBMI Stockholders' Agreement
and the Stockholders Agreement, there are no subscriptions, options, warrants or
other similar rights, agreements or commitments of any kind obligating the
Company, Merger Sub or NBMI to issue or sell, or to cause to be issued or sold,
or to repurchase or otherwise acquire, any shares of its capital stock or any
securities convertible into or exchangeable for, or any options, warrants or
other similar rights relating to, any such shares.
4.3 AUTHORIZATION AND VALIDITY OF AGREEMENTS. Each of the
Company, Merger Sub and NBMI has all requisite corporate power and authority to
execute and deliver this Agreement and, in the case of the Company, the
Stockholders Agreement, to perform their obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and, in the case of the Company, the
Stockholders Agreement, the performance by each of the Company, Merger Sub and
NBMI of their obligations hereunder and thereunder and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite corporate action of the Company, Merger Sub and NBMI. This Agreement
and the Stockholders Agreement constitute legal, valid and binding obligations
of the Company, Merger Sub and NBMI enforceable against the Company, Merger Sub
and NBMI, respectively, in accordance with their respective terms.
4.4 NO CONFLICTS; CONSENTS. Except for the applicable
requirements under the HSR Act, the rules and regulations of the NYSE, the New
York Banking Law
9
and the Delaware banking law, the execution, delivery and performance of this
Agreement by the Company, Merger Sub and NBMI and the Stockholders Agreement by
the Company and the consummation by the Company, Merger Sub and NBMI of the
transactions contemplated hereby and thereby do not and will not conflict with,
contravene, result in a violation or breach of or default under (with or without
the giving of notice or the lapse of time, or both), permit any party to
terminate, amend or accelerate the provisions of, or result in the imposition
of any Lien (or any obligation to create any Lien) upon any of the property or
assets of the Company, Merger Sub and NBMI under (A) any Contract to which any
of the Company, Merger Sub and NBMI is a party or by which any of their property
or assets may be bound or (B) any provision of the certificate of incorporation
or the bylaws of the Company, Merger Sub and NBMI.
4.5 PURCHASE FOR INVESTMENT. The Company is acquiring the NB
LLC Interests solely for investment, with no present intention to resell the NB
LLC Interests. The Company hereby acknowledges that the NB LLC Interests have
not been registered pursuant to the Securities Act and may not be transferred in
the absence of such registration or an exemption therefrom under the Securities
Act.
4.6 NO PRIOR OPERATIONS. Neither the Company nor Merger
Sub has had any operations or assets prior to the date hereof.
ARTICLE V
COVENANTS
5.1 NO TRANSFERS PRIOR TO CLOSING. From and after the date of
this Agreement and prior to the Closing, no Founder Stockholder shall Transfer
all or any portion of its interest in an NB LLC Interest or any shares of NBMI
Stock held by such Founder Stockholder without the prior written consent of the
Company.
5.2 TAX MATTERS. (a) MERGER. The parties intend the Merger to
qualify as a reorganization under Sections 368(a)(1)(A) and 368(a)(2)(E) of the
Code; each party and its affiliates shall use all reasonable efforts to cause
the Merger to so qualify; no party nor any affiliate thereof shall take any
action that would reasonably be expected to cause the Merger not to so qualify;
and the parties will take the position for all purposes that the Merger so
qualifies.
(b) EXCHANGE. The parties intend the Exchange to qualify as an
exchange under Section 351 of the Code; each party and its affiliates shall use
all reasonable efforts to cause the Exchange to so qualify; no party nor any
affiliate thereof shall take any action
10
that would reasonably be expected to cause the Exchange not to so qualify; and
the parties will take the position for all purposes that the Exchange so
qualifies.
5.3 FURTHER ASSURANCES. Each party hereto shall execute and
deliver such instruments and take such other actions prior to or after the
Closing as any other party may reasonably request in order to carry out the
intent of this Agreement, including without limitation obtaining any required
consents or approvals from third parties, and hereby agrees to use their
respective reasonable best efforts to consummate the Exchange and the Merger at
the earliest practicable time.
ARTICLE VI
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY,
MERGER SUB, NBMI AND OF THE FOUNDER STOCKHOLDERS
6.1 CONDITIONS TO THE OBLIGATIONS OF THE PARTIES. The
obligations of the Company, Merger Sub, NBMI and the Founder Stockholders to
consummate the transactions contemplated hereby are subject to the fulfillment
(or waiver by the Company, Merger Sub, NBMI and a Majority in Interest) of each
of the following conditions prior to the Closing:
(a) All conditions to the closing of the IPO pursuant to the
applicable underwriting agreements (other than any conditions that the
Closing and Effective Time shall have occurred) shall have been
satisfied.
(b) The consent of, or any required notice to, the NYSE, the
New York Banking Department and the applicable Delaware and Florida
banking authorities, and all material regulatory, governmental and
other third party approvals or notices required in the judgment of the
Company for the consummation of the transactions contemplated by this
Agreement shall have been obtained or made;
(c) In respect of any required notification pursuant to the
HSR Act, the applicable waiting period and any extension thereof shall
have expired or been terminated; and
(d) The consummation of the transactions contemplated hereby
shall not have been precluded by any order, decree, judgment or
injunction of a court of competent jurisdiction or other governmental
or regulatory authority, and there shall not have been any action taken
or any statute, rule or regulation enacted,
11
promulgated or deemed applicable to, the transactions contemplated
hereby by any court, governmental agency or regulatory or
administrative authority that makes consummation of such transactions
illegal.
6.2 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY, MERGER SUB
AND NBMI. The obligations of the Company, Merger Sub and NBMI under this
Agreement to consummate the transactions contemplated hereby are subject to the
fulfillment (or waiver by the Company) of the following condition prior to the
Closing:
(a) The representations and warranties of the Founder
Stockholders contained in or made pursuant to this Agreement shall be
deemed to have been made again at and as of the Closing and shall then
be true and accurate in all material respects, and each of the Founder
Stockholders shall have performed and complied in all material respects
with all agreements required by this Agreement to be performed or
complied with by each of them prior to or at the Closing; and
(b) The Stockholders Agreement substantially in the form of
Exhibit A hereto (the "STOCKHOLDERS AGREEMENT") shall have been
executed and delivered by each of the Founder Stockholders to the
Company.
6.3 CONDITIONS TO THE OBLIGATIONS OF THE FOUNDER STOCKHOLDERS.
The obligations of the Founder Stockholders under this Agreement to consummate
the transactions contemplated hereby are subject to the fulfillment (or waiver
in writing by a Majority in Interest) of the following condition prior to the
Closing:
(a) All representations and warranties of the Company, Merger
Sub and NBMI in this Agreement shall be deemed to have been made again
at and as of the Closing and shall then be true and accurate in all
material respects, and the Company, Merger Sub and NBMI shall have
performed and complied in all material respects with all agreements
required by this Agreement to be performed or complied with by it prior
to or at the Closing; and
(b) The Stockholders Agreement shall have been executed and
delivered by the Company to each of the Founder Stockholders.
12
ARTICLE VII
THE CLOSING
7.1 CLOSING DATE. The Closing shall take place at the offices
of Debevoise & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on such
date as the Company shall determine by notice as soon as practicable following
satisfaction or waiver of all of the conditions required to be satisfied (or
waived) pursuant to Article VI for the purpose of confirming the Merger and the
Exchange.
7.2 CLOSING DELIVERIES. At the Closing, (A) the Principals
will deliver the Certificates in accordance with Section 1.6(a); (B) the Company
shall issue shares of Common Stock required to be delivered under Articles I and
II of this Agreement to a nominee designated by the Company, which nominee shall
hold such shares in accordance with the Stockholders Agreement; and (C) the
parties will make such other deliveries as are contemplated by this Agreement to
be made at the Closing.
ARTICLE VIII
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the following meanings:
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"AMEX" has the meaning set forth in Section 10.7(b).
"BCL" means the New York Business Corporation Law.
"Certificates" has the meaning set forth in Section 1.5.
"Closing" has the meaning set forth in Section 7.1.
"Code" has the meaning set forth in the recitals to this
Agreement.
"Common Stock" has the meaning set forth in the recitals to
this Agreement.
13
"Company" has the meaning set forth in the preamble to this
Agreement.
"Contract" means any contract, agreement, indenture, letter of
credit, mortgage, security agreement, pledge agreement, deed of trust,
bond, note, guarantee, surety obligation, warranty, license, franchise,
permit, power of attorney, lease, instrument or other agreement.
"Effective Time" has the meaning set forth in Section 1.2.
"Exchange" has the meaning set forth in the recitals to this
Agreement.
"Executive Committee" means the executive committee of NB LLC
or any Person or Persons authorized by such executive committee to
perform any action, approve any matter or make any determination
permitted to be taken, approved or determined by the Executive
Committee under this Agreement.
"Family Affiliates" means the Persons listed on Schedule II
hereto.
"Founder Shares" means, with respect to any Founder
Stockholder, the shares of Common Stock received or to be received by
such Founder Shareholder pursuant to the terms of this Agreement.
"Founder Stockholders" has the meaning set forth in the
recitals to this Agreement.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976, as amended.
"IPO" means the initial public offering of the Common Stock of
the Company.
"Lien" means any claim, lien, pledge, deed of trust, option,
charge, security interest, hypothecation, encumbrance, right of first
offer, voting trust, proxy, right of third parties or other restriction
or limitation of any nature whatsoever.
"Majority in Interest" means Founder Stockholders that,
pursuant to the terms of this Agreement, will receive more than 50% of
the Founder Shares.
"Merger" has the meaning set forth in the recitals to this
Agreement.
"Merger Consideration" has the meaning set forth in Section
1.4(c).
14
"Merger Sub" has the meaning set forth in the preamble to this
Agreement.
"NASD" has the meaning set forth in Section 10.7(c).
"NB LLC" has the meaning set forth in the preamble to this
Agreement.
"NB LLC Agreement" means the Limited Liability Company
Agreement of NB LLC, dated as November 1, 1996, as amended by the First
Amendment thereto, dated as of August 3, 1998.
"NB LLC Interest" means a limited liability company interest
in NB LLC held by any member thereof, including without limitation all
right, title and interest of such member in the capital, allocations of
profit and loss, distributions of cash and property and all other
rights otherwise accruing to such Person pursuant to the NB LLC
Agreement.
"NBMI" has the meaning set forth in the preamble to this
Agreement.
"NBMI By-Laws" means the Amended and Restated By-Laws of NBMI.
"NBMI Stock" shall mean the common stock, par value $.01, of
NBMI.
"NBMI Stockholders' Agreement" has the meaning set forth in
Section 1.6.
"NYSE" means the New York Stock Exchange.
"Person" means any natural person or any firm, partnership,
limited liability partnership, association, corporation, limited
liability company, trust, business trust, governmental authority or
other entity.
"Pre-Closing Taxes" means all Taxes which are imposed on or
with respect to NB LLC or NBMI or the assets or properties of NB LLC or
NBMI for any taxable period (or a portion thereof) ending on or prior
to the Effective Time; PROVIDED that, any such Taxes attributable to a
taxable period that begins before and ends after the Effective Time
shall be apportioned between the portion of such period ending on the
Effective Time and the portion of such period beginning on the date
after the Effective Time as follows: (X) in the case of real or
personal property Taxes, by apportioning such Taxes on a per diem
basis, (Y) in the case of income Taxes, on the basis of the taxable
income or loss of NB LLC or NBMI as determined from the books and
records of such entity for such partial period and
15
(Z) in all other cases, on the basis of the actual activities of such
entity as determined from the books and records of such entity for such
partial period.
"Principals" means the Persons listed on Schedule I hereto.
"Stockholders Agreement" has the meaning set forth in Section
6.2(b).
"Surviving Corporation" has the meaning set forth in Section
1.1.
"Tax" means any federal, state, local, foreign or other
income, alternative, minimum, accumulated earnings, personal holding
company, franchise, capital stock, net worth, capital, profits,
windfall profits, gross receipts, value added, sales (including, but
not limited to, bulk sales), use, goods and services, excise, customs
duties, transfer, conveyance, mortgage, registration, stamp,
documentary, recording, premium, severance, environmental (including,
but not limited to, taxes under section 59A of the Code), real
property, personal property, ad valorem, intangibles, rent, occupancy,
license, occupational, employment, unemployment insurance, social
security, disability, workers' compensation, payroll, health care,
withholding, estimated or other similar tax, duty or other governmental
charge or assessment or deficiencies thereof, including, but not
limited to, all interest and penalties thereon and additions thereto
whether disputed or not.
"Transfer" means, with respect to any shares of capital stock,
directly or indirectly, (i) to sell, assign, transfer, pledge, convey,
distribute, mortgage, encumber, hypothecate or otherwise dispose,
whether by gift, for consideration or for no consideration or (ii) to
grant any proxy or voting rights, or enter into any voting agreement or
trust.
"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE IX
POWER OF ATTORNEY
Section 9.1 AUTHORITY. (a) Each Founder Stockholder hereby
makes, constitutes and appoints the Secretary of the Company, and any successor
thereof, with full power of substitution and resubstitution, his, her or its
true and lawful attorney for his, her or it and in his, her or its name, place
and stead and for his, her or its use and benefit, to execute and deliver:
16
(i) the Stockholders Agreement, with such changes and
alteration as may be approved by the Executive Committee;
(ii) if such Founder Stockholder has provided notice to the
Executive Committee that such Founder Stockholder desires to
participate in the IPO, (x) one or more underwriting agreements among
the Company, underwriters and the Founder Stockholders participating in
the IPO and (y) a power-of-attorney to be used in connection with the
IPO, in all cases substantially in the form approved by the Executive
Committee;
(iii) all stock powers, instruments of assignment,
endorsements and other documents necessary, appropriate, advisable or
convenient to facilitate or consummate the sale of Common Stock in
accordance with Article III of the Stockholders Agreement; and
(iv) all other agreements, instruments, acknowledgments,
filings, receipts, powers-of-attorney, endorsements, stock powers,
other instruments of assignment and other documents of any kind that
the Executive Committee shall deem necessary, appropriate, advisable or
convenient to facilitate or consummate the Exchange, the Merger or the
IPO.
(b) Each Founder Stockholder authorizes such attorney-in-fact
to take any further action which such attorney-in-fact shall consider necessary,
appropriate, advisable or convenient in connection with any of the foregoing,
hereby giving such attorney-in-fact full power and authority to do and perform
each and every act or thing whatsoever requisite, appropriate, advisable or
convenient to be done in and about the foregoing as fully as such Founder
Stockholder might or could do if personally present, and hereby ratifying and
confirming all that such attorney-in-fact shall lawfully do or cause to be done
by virtue hereof.
Section 9.2 TERMS. The power of attorney granted pursuant to
Section 9.1 (a) is a special power of attorney coupled with an interest and,
until terminated in accordance with Section 10.2, is irrevocable and (b) may be
exercised by such attorney-in-fact by listing all of the Founder Stockholders
executing any agreement, instrument, acknowledgment, filing, receipt,
power-of-attorney and other document with the single signature of such
attorney-in-fact acting as attorney-in-fact for all of them.
17
ARTICLE X
MISCELLANEOUS
10.1 NOTICES. (a) All notices, requests, demands, waivers and
other communications to be given by any party hereunder shall be in writing and
shall be (i) mailed by first-class, registered or certified mail, postage
prepaid, (ii) sent by hand delivery or reputable overnight delivery service or
(iii) transmitted by telecopy (provided that a copy is also sent by reputable
overnight delivery service) addressed, in the case of any Principal, to him or
her at the address set forth on Schedule I, in the case of any Family Affiliate,
to it at the address set forth on Schedule II or, in the case of the Company,
Merger Sub or NBMI, to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ATTENTION:
Secretary, or, in each case, to such other address as may be specified in
writing to the other parties hereto.
(b) All such notices, requests, demands, waivers and other
communications shall be deemed to have been given and received (i) if by
personal delivery or telecopy, on the day of such delivery, (ii) if by
first-class, registered or certified mail, on the fifth Business Day after the
mailing thereof or (iii) if by reputable overnight delivery service, on the day
delivered.
10.2 TERMINATION. (a) This Agreement may be terminated
at any time prior to the consummation of the transactions contemplated hereby:
(i) after March 31, 2000, by the Company, Merger Sub, NBMI or
a Majority in Interest by written notice if the Closing has not
occurred for any reason other than a breach of this Agreement by the
terminating party;
(ii) by the Company, Merger Sub or NBMI, if there has been a
material breach by any of the Founder Stockholders of a material
agreement, representation or warranty contained in this Agreement which
has not been cured after notice from the Company;
(iii) by a Majority in Interest, if there has been a material
breach by the Company, Merger Sub or NBMI of a material agreement,
representation or warranty contained in this Agreement which has not
been cured after notice from a Majority in Interest; or
(iv) by mutual consent of the Company, Merger Sub, NBMI and a
Majority in Interest.
18
(b) In the event of the termination of this Agreement in
accordance with Section 10.2(a), this Agreement shall become void and have no
effect, without any liability to any person in respect hereof or of the
transactions contemplated hereby on the part of any party hereto, or any of its
directors, officers, officers, representatives, stockholders or affiliates,
except for any liability resulting from such party's willful and material breach
of this Agreement.
10.3 OBLIGATIONS OF FOUNDER STOCKHOLDERS. The obligations of
the Founder Stockholders under this Agreement shall be several and shall not be
joint and several.
10.4 AMENDMENTS; WAIVERS. The provisions of this Agreement may
not be amended or modified except by a writing signed by the Company, Merger
Sub, NBMI and a Majority in Interest, PROVIDED that the Company may amend this
Agreement, without the consent of any other Person, to cure any ambiguity or to
correct or supplement any provisions of this Agreement that may be incomplete or
inconsistent with any other provisions contained herein. The failure of any
party at any time or times to require performance of any provision of this
Agreement shall in no manner affect the rights at a later time to enforce the
same. No waiver by any party of the breach of any term contained in this
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be or construed as a further or continuing waiver of any such
breach or the breach of any other term of this Agreement.
10.5 SEVERABILITY. If the final determination of an arbitral
body or a court of competent jurisdiction declares, after the expiration of the
time within which judicial review (if permitted) of such determination may be
perfected, that any term or provision hereof is invalid or unenforceable, (A)
the remaining terms and provisions hereof shall be unimpaired and (B) the
invalid or unenforceable term or provision shall be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
10.6 REPRESENTATIVES, SUCCESSORS AND ASSIGNS. Each Principal
shall cause his or her Family Affiliate to comply with the terms and provisions
of this Agreement. This Agreement shall be binding upon and inure to the benefit
of the respective parties hereto and their respective legatees, legal
representatives, successors and assigns; PROVIDED that Founder Stockholders may
not in any manner whatsoever assign, delegate or otherwise Transfer any of their
rights or obligations under, or with respect to the Merger Consideration or the
Company Stock to be received through the Exchange pursuant to, this Agreement
except with the prior written consent of the Company.
19
10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES OR
RULES THEREOF).
10.8 SPECIFIC PERFORMANCE. (a) Each of the parties hereto
acknowledges that it will be impossible to measure in money the damage to the
Company, Merger Sub, NBMI or the Founder Stockholders if any party hereto fails
to comply with the provisions of Article I or II or Section 5.1 and each party
hereto agrees that in the event of any such failure, neither the Company, nor
Merger Sub, nor NBMI nor any Founder Stockholder will have an adequate remedy at
law. Therefore, the Company, Merger Sub, NBMI and each Founder Stockholder, in
addition to all of the other remedies which may be available, shall have the
right to equitable relief, including, without limitation, the right to enforce
specifically the provisions of Article I and II and Section 5.1 by obtaining
injunctive relief against any violation thereof, or otherwise or
(b) All claims for specific performance of one or more
provisions of this Agreement, including all such claims with respect to the
obligations hereunder to consummate the Exchange and the Merger, shall be
resolved exclusively by litigation before a court of competent jurisdiction
located in the State of New York.
10.9 ARBITRATION. Except for claims for specific performance
brought in accordance with Section 10.8, all disputes, differences, and
controversies arising out of or in any way related to this Agreement shall be
submitted:
(a) to the NYSE to be heard and decided under the terms of
this Agreement and the then applicable rules of the NYSE or, if those
rules as interpreted by the NYSE do not permit the disputes,
differences and controversies to be submitted to the NYSE for
arbitration; then
(b) to the American Stock Exchange (the "AMEX") in New York,
New York, to be heard and decided under the terms of this Agreement and
the then applicable rules of the AMEX or, if those rules as interpreted
by the AMEX do not permit the disputes, differences and controversies
to be submitted to the AMEX for arbitration; then
(c) to the National Association of Securities Dealers, Inc.
(the "NASD") in New York, New York, to be heard and decided under the
terms of this Agreement and the then applicable rules of the NASD or,
if the disputes, differences and controversies are not eligible for
submission to the NASD for arbitration under those rules as interpreted
by the NASD; then
20
(d) to the American Arbitration Association in New York,
New York; to be heard and decided under the terms of this Agreement and in
accordance with the then applicable rules of the hearing body by a panel of
three arbitrators (unless the rules of the hearing body shall require a
different number of arbitrators) chosen in accordance with the then applicable
rules of the hearing body. The decision of the arbitrators shall be final and
binding upon the parties, and an order may be entered upon the award of the
arbitrators in any court of competent jurisdiction.
10.10 TAX INDEMNITY; TAX REFUNDS. (a) Each Founder Stockholder
shall severally indemnify the Company and each of its subsidiaries and hold them
harmless from and against, and pay and reimburse them for, any and all demands,
claims, actions, losses, damages, liabilities, obligations, Taxes, deficiencies,
out-of-pocket costs and expenses (including reasonable consultants' and
attorneys' fees), whether or not resulting from third-party claims, including
interest and penalties with respect thereto, asserted against or incurred or
sustained by any of them as a result of or arising out of all Pre-Closing Taxes.
Such obligations shall be borne by Founder Stockholders in the same proportion
that such Pre-Closing Taxes would have been borne by Founder Stockholders had
such Pre-Closing Taxes been paid when incurred.
(b) All refunds received by the Company, NB LLC or NBMI in
respect of Pre-Closing Taxes shall be paid to the Founder Stockholders in the
same proportion that related Pre-Closing Taxes were borne by the Founder
Stockholders when such Pre-Closing Taxes were paid.
10.11 SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITY. Each
Founder Stockholder, for itself and its successors and assigns, hereby
irrevocably waives (a) any objection, and agrees not to assert, as a defense in
any arbitration or legal or equitable action, suit or proceeding against such
Founder Stockholder arising out of or relating to this Agreement or any
transaction contemplated hereby or the subject matter of any of the foregoing,
that (i) it is not subject thereto or that such action, suit or proceeding may
not be brought or is not maintainable before such arbitral body or in said
courts, (ii) the venue thereof may not be appropriate and (iii) the internal
laws of the State of New York do not govern the validity, interpretation or
effect of this Agreement, (b) any immunity from jurisdiction to which it might
otherwise be entitled in any such arbitration, action, suit or proceeding which
may be instituted in any state or federal court in the State of New York in
accordance with Section 10.8 or before any arbitral body in accordance with
Section 10.9 and (c) any immunity from the maintaining of an action against it
to enforce any judgment for money obtained in any such arbitration, action, suit
or proceeding and, to the extent permitted by applicable law, any immunity from
execution.
21
10.12 EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument.
10.13 ENTIRE AGREEMENT. This Agreement, including the
Schedules and Exhibits hereto, contains the entire understanding of the parties
with respect to the subject matter hereof, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter hereof.
22
IN WITNESS THEREOF, the parties have executed and delivered
this Agreement as of the date first written above.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President, Chief Executive Officer
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ SUB INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MANAGEMENT INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Principal and
Chief Executive Officer
The foregoing Plan of Merger and
Exchange Agreement is hereby
agreed to by the undersigned as of
August 2, 1999.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/▇▇▇▇▇▇ ▇. D'Alelio
/s/▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. English
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇ III
/s/▇▇▇▇▇▇ ▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. Risen
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇. Silver
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇, III
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Associates, Inc.,
its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
BERLIN ASSOCIATES, L.P.
By: Berlin Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
CANTOR ASSOCIATES, L.P.
By: Cantor Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
EGENER ASSOCIATES, L.P.
By: Egener Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
FRANCFORT 1998 GRANTOR RETAINED ANNUITY TRUST
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇▇▇ Francort
Trustee
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Trustee
GANEK ASSOCIATES, L.P.
By: Ganek Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
GIULIANO ASSOCIATES, L.P.
By: Giuliano Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
KAMEN ASSOCIATES, L.P.
By: Kamen Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
President
LAINOFF ASSOCIATES, L.P.
By: Lainoff Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
President
LASSER ASSOCIATES, L.P.
By: Lasser Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇▇▇ III ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇ III Associates, Inc.,
its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇ III
President
McKERROW ASSOCIATES, L.P.
By: McKerrow Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
NEUBERGER ASSOCIATES, L.P.
By: Neuberger Associates, Inc., its general partner
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
POTTER ASSOCIATES, L.P.
By: Potter Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ 1998 TRUST
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇ 1998 GST TRUST
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Trustee
WEINER 1998 GRANTOR RETAINED ANNUITY TRUST
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/Bintoar Palar
Trustee
▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
ZICKLIN ASSOCIATES, L.P.
By: Zicklin Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
SCHEDULE I
Name and Address* of Principal Number of NBMI Shares
------------------------------ ---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 104
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 548
▇▇▇▇ ▇. ▇▇▇▇▇▇ 88
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 229
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 171
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 431
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 104
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 77
▇▇▇▇▇▇ ▇. English 99
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 75
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 244
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 327
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 170
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 128
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 76
▇▇▇ ▇. ▇▇▇▇▇▇▇ 77
▇▇▇▇ ▇. ▇▇▇▇▇▇ 112
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 62
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 125
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 351
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 245
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 56
▇▇▇▇▇ ▇▇▇▇▇▇▇ 291
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ 157
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 75
--------
* Unless otherwise indicated, the address of each Principal is c/o
Neuberger ▇▇▇▇▇▇, LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Name and Address* of Principal Number of NBMI Shares
------------------------------ ---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 147
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 137
▇▇▇▇▇▇▇▇ ▇▇▇▇ III 158
▇▇▇▇▇▇ ▇▇▇▇▇ 94
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 142
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 89
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 56
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 99
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 229
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 34
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 171
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 68
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 262
C. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 63
▇▇▇▇▇ ▇. Risen 108
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 95
J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇. 63
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,657
▇▇▇▇▇▇▇▇ ▇. Silver 113
▇▇▇▇ ▇. ▇▇▇▇▇▇ 226
R. ▇▇▇▇▇▇ ▇▇▇▇▇▇ 161
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 63
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 178
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 39
▇▇▇▇ ▇▇▇▇▇ 94
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 104
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 82
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 38
▇▇▇▇▇ ▇▇▇▇▇▇▇ 98
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 95
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 70
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇. 127
Name and Address* of Principal Number of NBMI Shares
------------------------------ ---------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇ 257
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 183
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 63
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 670
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 63
▇▇▇▇▇ ▇. ▇▇▇▇▇, III 109
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 465
Total 12,500
======
SCHEDULE II
Name and Address** of Family Affiliate
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇ Associates, L.P.
Berlin Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, L.P.
Francfort 1998 Grantor Retained Annuity Trust
Ganek Associates, ▇.▇.
▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇ Associates, L.P.
Kamen Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, L.P.
▇▇▇▇▇▇▇▇ ▇▇▇▇ III Associates, ▇.▇.
▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust
Potter Associates, ▇.▇.
▇▇▇▇▇▇▇▇ ES Associates, ▇.▇. ▇▇▇▇▇▇▇▇ CS Associates, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ Associates, ▇.▇.
▇▇▇▇▇▇▇ 1998 Trust
--------
** Unless otherwise indicated, the address of each Family Affiliate is c/o
Neuberger ▇▇▇▇▇▇ Trust Company of Delaware, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
▇▇▇▇▇▇▇ Associates, L.P.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust
▇▇▇▇▇▇ 1998 GST Trust
Weiner 1998 Grantor Retained Annuity Trust
▇▇▇▇▇▇▇▇ Associates, L.P.
Zicklin Associates, L.P.