McAPPLE CONTRIBUTION AGREEMENT
Exhibit 2.1.2
Execution
Version
McAPPLE CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT, dated as of December 4, 2006 (the
“Agreement”), among ▇▇▇▇▇▇▇▇ Corporation, a West Virginia corporation (the
“Company”),
McJ Holding LLC, a Delaware limited liability company
(“Holdco”), and the
shareholders of ▇▇▇▇▇▇▇▇ Appalachian Oilfield Supply Company, a West Virginia corporation
(“McApple”), named in
Exhibit A hereto (collectively, the “Contributing
Shareholders”).
RECITALS
WHEREAS, simultaneously with the execution and delivery of this Agreement, each
Contributing Shareholder is executing and delivering a limited liability company operating
agreement (the “Holdco LLC Agreement”) and a registration rights agreement (the
“Registration Rights Agreement”) relating to membership interests in Holdco to be
received pursuant to this Agreement;
WHEREAS, simultaneously with the execution and delivery of this Agreement, the Company
is executing and delivering an agreement and plan of merger (the
“Merger Agreement”)
with McJ Holding Corporation, a Delaware corporation and wholly owned subsidiary of Holdco
(“Parent”), and Hg Acquisition Corp., a West Virginia corporation and wholly owned
subsidiary of Parent (“Merger Sub”), pursuant to which Merger Sub will merge with and
into the Company (the “Merger”) and the Company will become a wholly owned subsidiary
of Parent;
WHEREAS, each of the Contributing Shareholders owns the number of shares of common stock,
par value $0.01 per share, of McApple set forth opposite his name in
Exhibit A hereto
(“Shares” and all Shares owned by the Contributing Shareholders, collectively “the
Shares”);
WHEREAS, the parties hereto desire that the Shares be contributed immediately prior to
the consummation of the Merger by the Contributing Shareholders on the terms and conditions
provided in this Agreement; and
WHEREAS,
the contribution of the Shares by the Contributing Shareholders to Holdco in exchange for Holdco Units (as defined below) and the Cash Consideration (as defined
below) is intended to qualify as a transaction governed by Sections 707 and 721 of the Internal
Revenue Code of 1986, as amended (the
“Code”).
NOW, THEREFORE, in consideration of the premises, and of the representations, warranties,
covenants and agreements contained herein and in the Merger Agreement, the parties hereto agree
as follows:
ARTICLE I
Contribution
1.1. Contribution. At the Closing provided for in Section 1.3, Holdco shall
receive from each of the Contributing Shareholders, and each of the Contributing Shareholders
shall contribute to Holdco, all Shares owned by such Contributing Shareholder for the Per Share
Consideration (as defined below).
1.2.
Consideration. The consideration per Share (the “Per Share
Consideration”) shall be (i) an amount in cash equal to the Book Value per Share (as defined
below) as of the close of business on the last day of the month preceding the one in which the
Closing occurs as reasonably estimated by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Chief Financial Officer of the
Company (the “Cash Consideration”) and (ii) a number of Common Units (as defined in the
Holdco LLC Agreement) of Holdco (“Holdco
Units”) equal in value to $8,000,000 divided by
the number of shares of common stock of McApple issued and outstanding immediately prior to the
Closing (other than the shares held by the Company). It being understood and agreed that the value
of each Holdco Unit shall be as determined pursuant to Section 4.2(a)(ii) of the Merger Agreement.
“Book Value per Share” means (i) the total assets of McApple minus the total liabilities of
McApple, in each case, as determined under U.S. Generally Accepted Accounting Principles consistent
with the balance sheet of McApple for the nine month period ended September 30, 2006 previously
provided to Holdco adjusted for the deferred tax impact of LIFO valued inventories contributed by
the Company when McApple was formed divided by (ii) the number of shares of common stock of McApple
outstanding immediately prior to the Closing (including, for the avoidance of doubt, the shares
held by the Company).
1.3. Closing. Subject to the satisfaction or waiver of the conditions set
forth in Article IV, the closing of the transactions
contemplated hereunder (the “Closing”) shall
take place at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ (or
such other place as the parties may agree) immediately prior to the consummation of the Merger.
The actual time and date of the Closing is referred to herein as the
“Closing Date”.
1.4. Adjustments to the Consideration. Holdco shall, as soon as practicable
following the Closing and in any event within thirty (30) days after the Closing Date,
procure that a balance sheet for McApple as of the Closing Date is prepared and delivered to
the Contributing Shareholders (the “Closing Balance
Sheet”). If the Book Value per
Share on the Closing Date as set forth on the Closing Balance Sheet exceeds the Cash
Consideration, Holdco shall deliver to each Contributing Shareholder an amount in cash equal
to such excess for each Share contributed to Holdco by such Contributing Shareholder pursuant
to this Agreement by wire transfer of immediately available funds within five (5) days after
the Closing Balance Sheet is delivered to the Contributing Shareholders. If the Book Value
per Share on the Closing Date as set forth on the Closing Balance Sheet is less than the Cash
Consideration, each Contributing Shareholder shall deliver to Holdco an amount equal to such
shortfall for each Share contributed to Holdco by such Contributing Shareholders pursuant to
this Agreement by wire transfer of immediately available funds within five (5) days after the
Closing Balance Sheet is delivered to the Contributing Shareholders. If the Contributing
Shareholders disagree with the Book Value per Share on the Closing Date as set forth on the
Closing Balance Sheet, then no later than three
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(3) days after the Closing Balance Sheet is delivered to the Contributing Shareholders,
the Contributing Shareholders may, at their sole cost and expense, hire Ernst & Young LLP
(“EY”) to audit the Closing Balance Sheet. If the Contributing Shareholders hire EY to audit
the Closing Balance Sheet, then the determination by EY of the Book Value per Share on the
Closing Date shall be binding on the parties hereto and any amount owed pursuant to this
Section 1.4 shall be paid by wire transfer of immediately available funds within
five (5) days after EY has made such determination.
ARTICLE II
Representations and Warranties
2.1. Representations and Warranties of the Contributing Shareholders. Each
Contributing Shareholder hereby represents and warrants to Holdco that:
(a) Such Contributing Shareholder has all requisite power and authority and has
taken all action necessary in order to execute, deliver and perform his obligations
under this Agreement, the Holdco LLC Agreement and the Registration Rights Agreement.
Each of this Agreement, the Holdco LLC Agreement and the Registration Rights Agreement
has been duly executed and delivered by such Contributing Shareholder and constitutes
a valid and binding agreement of such Contributing Shareholder enforceable against him
in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles. Such Contributing
Shareholder is an “accredited investor” as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act of 1933, as amended and, in
connection with the execution of this Agreement, agrees to deliver such certificates
to that effect as Holdco may request.
(b) Such Contributing Shareholder is the sole record and beneficial
owner of, and has good and marketable title to, the number of Shares set forth
opposite his name in Exhibit A hereto free and clear of any
lien, charge, pledge,
security interest, claim or other encumbrance (collectively,
“Liens”). Except as
set forth on Exhibit A, such Contributing Shareholder does not own any shares of
capital stock or other securities of McApple or any securities or obligations
convertible, or exchangeable or exercisable for, or giving him a right to subscribe for
or acquire, any securities of McApple. Upon consummation of the contribution of Shares
by such Contributing Shareholders as provided in this Agreement, Holdco will acquire
good and marketable title to such Shares free and clear of all Liens. There are no
preemptive or other outstanding rights, options, warrants, conversion rights, stock
appreciation rights, redemption rights, repurchase rights, agreements, arrangements,
calls, commitments or rights of any kind that will obligate McApple to issue or sell
any shares of capital stock or other securities of McApple or any securities or obligations
convertible, or exchangeable or exercisable for, or giving any person a right to
subscribe for or acquire,
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any securities of McApple, and no securities or obligations evidencing such rights
are authorized, issued or outstanding.
(c) The execution, delivery and performance of this Agreement by such Contributing
Shareholder does not and will not (i) require him to obtain any consents, registrations,
approvals, permits or authorizations from any domestic or foreign governmental or
regulatory authority, agency, commission body, court or other legislative, executive or
judiciary government entity (except as would not have a material adverse effect on his
ability to perform his obligations under this Agreement) or (ii) constitute or result in
a breach or violation of, or a default under, or result in the creation of a lien or
encumbrance on any of his properties pursuant to any bond, debenture, note or other
evidence of indebtedness of him or any indenture or other material agreement to which he
is a party or by which he is bound or to which any of his material property may be
subject (except as would not have a material adverse effect on his ability to perform
his obligations under this Agreement).
(d) At the Effective Time (as defined in the Merger Agreement) of the
Merger (as defined in the Merger Agreement) each of (i) the Put/Call Agreement among
the Company, McApple and the individual shareholders named therein, dated as of
December 21, 1988, as amended by the Amendment between the Company, McApple and ▇▇▇▇▇
▇▇▇, III, dated as of September 2002 and (ii) the Shareholders’ Agreement dated as of
December 21, 1988 among McApple and the Contributing Shareholders relating to the
Shares will have been terminated and will be of no further force and effect.
(e) Such Contributing Shareholder has not granted and is not a party to any proxy,
voting trust or other agreement which conflicts with any provision of this Agreement, and
such Contributing Shareholder shall not grant any proxy or become party to any voting trust
or other agreement which conflicts with any provision of this Agreement.
2.2. Representations and Warranties of Holdco. Holdco hereby represents and
warrants to each of the Contributing Shareholders that:
(a) It has all requisite corporate power and authority and has taken all corporate
action necessary in order to execute, deliver and perform its obligations under this
Agreement. This Agreement has been duly executed and delivered by it and constitutes its
valid and binding agreement enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity
principles.
(b) Immediately following the Closing, all of such issued and outstanding Holdco Units
will be duly authorized and validly issued, fully paid and nonassessable.
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(c) Except as set forth in Section 5.2(c) of the Merger Agreement, the execution,
delivery and performance of this Agreement by Holdco does not and will not
(i) require it to obtain any consents, registrations, approvals, permits or
authorizations from or to deliver any notice or make any report or other filing with any
domestic or foreign governmental or regulatory authority, agency, commission body, court
or other legislative, executive or judiciary government entity (except such as may have
previously been obtained or is permitted to be, and will be, filed or made promptly
following the date hereof) or (ii) constitute or result in a breach or violation of, or
a default under, or result in the creation of a lien or encumbrance on any of its
properties pursuant to any bond, debenture, note or other evidence of indebtedness of it
or any indenture or other material agreement to which it is a party or by which it is
bound or to which any of its material property may be subject (except as would not
adversely affect its ability to perform its obligations under this Agreement.
ARTICLE III
Deliveries at the Closing
3.1.
Deliveries by Holdco at the Closing. At the Closing, Holdco shall:
(a) deliver the Cash Consideration by wire transfer of immediately available
funds as instructed by each Contributing Shareholder prior to the Closing
Date; and
(b) amend Schedule A to the Holdco LLC Agreement to reflect the
Holdco Units acquired by the Contributing Shareholders pursuant to this Agreement;
and
(c) deliver to each Contributing Shareholder a copy of the Holdco LLC
Agreement duly executed by all GSCP Members (as defined therein).
3.2. Deliveries by the Contributing Shareholders at the Closing. At the
Closing, each Contributing Shareholder shall deliver the following to Holdco:
(a) certificates representing the number of Shares set forth opposite his name in
Exhibit A hereto, free and clear of any and all Liens, duly endorsed in blank or
otherwise in proper form for transfer to Holdco.
3.3.
Put Option. On and for fifteen (15) business days after (x) January 8, 2010 or, if
earlier, (y)(i) each date that the Contributing Shareholders receive a Drag-Along Notice pursuant
to Section 12.8 of the Holdco LLC Agreement, or (ii) the date of notice to Holdco by McJ Members of
the exercise of their rights under Section 12.10 of the Holdco LLC Agreement, each Contributing
Shareholder shall have the right and option, but not the obligation
(the “Put Option”), to
cause Holdco to purchase all of the Holdco Units acquired by such Contributing Shareholder
hereunder for a purchase price in cash equal to the value of each Holdco Unit as set forth in
Section 1.2(ii) (as adjusted for any split, subdivision, combination, consolidation,
recapitalization or similar event with respect to the Holdco Units)
(the “Put
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Consideration”) by written notice to Holdco
of the exercise of such right and option (an “Exercise
Notice”). The closing of any exercise of the Put Option shall occur at 9:00
A.M. at the offices of Holdco on, as applicable, (a) February 25, 2010, (b) the date and time of
the closing of each Drag-Along Sale pursuant to the Holdco LLC Agreement (provided, that if the
Drag-Along Sale expires pursuant to Section 12.8(d) of the Holdco LLC Agreement, the Contributing
Shareholders may withdraw the Exercise Notice, or, if not withdrawn, the Contributing Shareholders
and Holdco shall agree to another time and place for the closing), or (c) the date of the
redemption under Section 12.10 of the Holdco LLC Agreement. The Put Option shall expire on the
earliest of (x) the sixteenth business day after January 8, 2010, (y) the date of closing of the
Drag-Along Sale pursuant to which all Holdco Units of all Contributing Shareholders are sold at
such closing, or (z), the date of the redemption pursuant to
Section 12.10 of the Holdco LLC
Agreement. Holdco (or its designee) shall pay the Put Consideration for each Holdco Unit acquired
by such Contributing Shareholder hereunder to the Contributing Shareholder exercising his Put
Option, by wire transfer of immediately available funds, and such Contributing Shareholder shall,
if applicable, deliver to Holdco certificates representing all of the Holdco Units acquired by such
Contributing Shareholder hereunder, duly endorsed in blank or otherwise in proper form for transfer
to Holdco. Notwithstanding any of the above, if any Contributing Shareholder(s) has exercised his
Put Option pursuant to this Section 3 and Holdco is not permitted to consummate the transactions
contemplated by the Put Option under applicable law, or due to a default under any debt financing
agreement of Holdco or any of its direct or indirect subsidiaries, or if a payment pursuant to this
Section 3 would trigger a default under any such debt financing agreement, Holdco shall issue to
such Contributing Shareholder(s) a promissory note with a principal amount equal to the applicable
Put Consideration and an interest rate equal to the prime rate then in effect, and such principal
and interest will be paid in full by wire transfer of immediately available funds at such time as
Holdco is permitted to pay such Put Consideration under applicable law and any debt financing of
Holdco and its direct and indirect subsidiaries.
ARTICLE IV
Conditions to Closing
4.1. Conditions to Obligations of Holdco. The obligations of Holdco to
consummate the transactions contemplated hereunder and to take the other actions at
Closing required by this Agreement are subject to the satisfaction or waiver by such party
of the following condition as of the Closing Date:
The representations and warranties of each Contributing Shareholder set forth in
this Agreement shall have been true and correct in all material respects when made
and shall be true and correct in all material respects as of, and as if made on, the
Closing Date.
4.2. Conditions to Obligations of the Contributing Shareholders. The obligations
of each Contributing Shareholder to consummate the transactions contemplated hereunder and to
take the other actions at Closing required by this Agreement are subject to the satisfaction
or waiver by such Contributing Shareholder of the following condition as of the Closing Date:
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The representations and warranties of Holdco set forth in this Agreement shall have
been true and correct in all material respects when made and shall be true and correct in
all material respects as of, and as if made on, the Closing Date.
4.3. Merger not Consummated. The parties hereto agree that if the Merger is not
consummated on or prior to the third business day after the Closing, then the transactions
effected at the Closing shall be unwound and the provisions of this Agreement shall be restored
as if the Closing had not taken place and shall thereafter remain in full force and effect until
terminated pursuant to the terms hereof.
ARTICLE V
Release
5.1. Release. From and after the Closing, each Contributing Shareholder hereby
absolutely, generally, irrevocably, unconditionally and completely releases and forever
discharges Holdco, the Company, McApple and their respective directors, officers, employees,
representatives, affiliates, stockholders, direct and indirect subsidiaries, successors and
assigns (collectively, the “Holdco Parties”) from all past, present and future claims directly or
indirectly relating to such Contributing Shareholder’s interest
in McApple (“Claims”), and hereby
absolutely, generally, irrevocably, unconditionally and completely waives and relinquishes all
Claims against the Holdco Parties.
ARTICLE VI
Termination
6.1. Termination. This Agreement shall automatically terminate upon termination of the
Merger Agreement pursuant to the terms thereof prior to consummation of the Merger.
ARTICLE VII
Miscellaneous
7.1.
Entire Agreement; Binding Effect; Assignment; No Third Party Beneficiaries. This
Agreement, the Holdco LLC Agreement and the Registration Rights Agreement constitute the entire
agreement, and supersede all other prior agreements, understandings, representations and
warranties both written and oral, among the parties, with respect to the subject matter hereof and
thereof. This Agreement shall be binding upon, inure to the benefit of and be enforceable only by
the parties hereto and their respective successors and permitted assigns. No party may assign its
rights or obligations under this Agreement to any other person
or entity without the prior written consent of the other parties and any purported assignment without such consent is
void. Nothing in this Agreement, express or implied, is intended to, or shall, give to any person
other than the parties hereto, their successors and
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permitted assigns any benefit or any legal or equitable right, remedy or claim under this
Agreement.
7.2.
Modification or Amendment; Waiver. This Agreement may only be amended,
modified, supplemented or waived with the written approval of each party hereto. No failure or
delay on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof or of any other or future exercise of any such right, power or
privilege.
7.3.
Counterparts. This Agreement may be executed in any number of counterparts, each
such counterpart being deemed to be an original instrument, and all such counterparts
shall together constitute the same agreement.
7.4.
Government Law and Venue; Waiver of Jury Trial; Specific Performance.
(a) THIS AGREEMENT
SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW
OF THE STATE OF DELAWARE
WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF. The parties hereby irrevocably
submit to the personal jurisdiction of the courts of the State of
Delaware located in the County of New Castle and the Federal courts of the United States of America
located in the County of New Castle solely in respect of the
interpretation and
enforcement of the provisions of this Agreement and of the documents
referred to in this Agreement, and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding for
the interpretation or enforcement hereof or of any such document, that it is not
subject thereto or that such action, suit or proceeding may not be brought or is not
maintainable in said courts or that the venue thereof may not be appropriate or
that this Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a Delaware State or Federal court
located in the County of New Castle. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and, to the extent
permitted by law, over the subject matter of such dispute and agree that mailing of process
or other papers in connection with any such action or proceeding in the manner provided in
Section 7.5 or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
(b) EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
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OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION
7.4.
(c) The parties agree that irreparable damage would 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 in Delaware State or
Federal court in the County of New Castle, this being in addition to any other remedy to
which such party is entitled at law or in equity.
7.5. Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, or by facsimile:
If to the Company:
▇▇▇▇▇▇▇▇ Corporation,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to ▇. ▇. ▇▇▇▇▇▇ III
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to ▇. ▇. ▇▇▇▇▇▇ III
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with
a copy to
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ III
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Holdco:
c/o GS Capital Partners V Fund, L.P.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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and:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Contributing Shareholders:
▇▇▇▇▇ ▇▇▇, III,
▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
and:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇,
▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other persons or addresses as may be designated in writing by the party
to receive such notice as provided above. Any notice, request, instruction or other
document given as provided above shall be deemed given to the receiving party upon
actual receipt, if delivered personally; three business days after deposit in the mail,
if sent by registered or certified mail; upon confirmation of successful transmission if
sent by facsimile (provided that if given by facsimile such notice, request, instruction
or other document shall be followed up within one business day by dispatch pursuant to
one of the other methods described herein); or on the next business day after deposit
with an overnight courier, if sent by an overnight courier.
7.6.
Interpretation; Construction.
(a) The headings herein are for convenience of reference only, do not constitute
part of this Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof. Where a reference in this Agreement is made to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated. Whenever
the words “include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.”
(b) The parties have participated jointly in negotiating and drafting this Agreement. In
the event that an ambiguity or a question of intent or interpretation arises, this Agreement
shall be construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provision of this Agreement.
10
7.7. Tax Matters. The parties hereto shall not take any position on any tax
return inconsistent with the treatment of the contribution of the Shares by the
Contributing Shareholders to Holdco in exchange for Holdco Units and the Cash Consideration
as a transaction governed by Sections 707 and 721 of the Code, unless otherwise required
pursuant to a “determination” within the meaning of Section
1313(a) of the Code. Notwithstanding any other provision of this Agreement, the obligations imposed by this
Section 7.7 will survive indefinitely.
(the remainder of this page has been intentionally left blank)
11
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties hereto
as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | ||
By:
|
/s/ ▇.▇. ▇▇▇▇▇▇ III |
||
Name: |
▇▇▇▇▇ ▇▇▇, III | ||
Title: |
|||
McJ HOLDING LLC |
▇▇▇▇▇▇▇ ▇. ▇▇▇ | ||
By: |
|||
Name: |
▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
Title: |
|||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| /s/ ▇. ▇. ▇▇▇▇▇▇, III | |||
| ▇. ▇. ▇▇▇▇▇▇, III | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
[McApple
Contribution Agreement Signature Page]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties hereto
as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | ||
By:
|
|||
Name: |
▇▇▇▇▇ ▇▇▇, III | ||
Title: |
|||
McJ HOLDING LLC
|
▇▇▇▇▇▇▇ ▇. ▇▇▇ | ||
By:
|
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
|
||
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
Title:
Vice President |
|||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| ▇. ▇. ▇▇▇▇▇▇, III | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
[McApple
Contribution Agreement Signature Page]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties
hereto as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | |||||
By:
|
/s/ ▇▇▇▇▇ ▇▇▇, III | |||||
| Name: | ▇▇▇▇▇ ▇▇▇, III | |||||
| Title: | ||||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇ | ||||||
| McJ HOLDING LLC | ▇▇▇▇▇▇▇ ▇. ▇▇▇ | |||||
By: |
||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Title: | ||||||
| /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| ▇. ▇. ▇▇▇▇▇▇, III | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
[McApple Contribution Agreement]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties
hereto as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | |||||
By: |
||||||
| Name: | ▇▇▇▇▇ ▇▇▇, III | |||||
| Title: | ||||||
| McJ HOLDING LLC | ▇▇▇▇▇▇▇ ▇. ▇▇▇ | |||||
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Title: | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| ▇. ▇. ▇▇▇▇▇▇, III | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
[McApple Contribution Agreement Signature Page]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties
hereto as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | |||||
By: |
||||||
| Name: | ▇▇▇▇▇ ▇▇▇, III | |||||
| Title: | ||||||
| McJ HOLDING LLC | ▇▇▇▇▇▇▇ ▇. ▇▇▇ | |||||
By: |
||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Title: | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| /s/ ▇. ▇. ▇▇▇▇▇▇, III | ||||||
| ▇. ▇. ▇▇▇▇▇▇, III | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
[McApple Contribution Agreement Signature Page]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties
hereto as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | |||||
By: |
||||||
| Name: | ▇▇▇▇▇ ▇▇▇, III | |||||
| Title: | ||||||
| McJ HOLDING LLC | ▇▇▇▇▇▇▇ ▇. ▇▇▇ | |||||
By: |
||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Title: | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| ▇. ▇. ▇▇▇▇▇▇, III | ||||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
[McApple Contribution Agreement Signature Page]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties
hereto as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | |||||
By: |
||||||
| Name: | ▇▇▇▇▇ ▇▇▇, III | |||||
| Title: | ||||||
| McJ HOLDING LLC | ▇▇▇▇▇▇▇ ▇. ▇▇▇ | |||||
By: |
||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Title: | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| ▇. ▇. ▇▇▇▇▇▇, III | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
[McApple Contribution Agreement Signature Page]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the parties
hereto as of the date first written above.
| ▇▇▇▇▇▇▇▇ CORPORATION | CONTRIBUTING SHAREHOLDERS | |||||
By: |
||||||
| Name: | ▇▇▇▇▇ ▇▇▇, III | |||||
| Title: | ||||||
| McJ HOLDING LLC | ▇▇▇▇▇▇▇ ▇. ▇▇▇ | |||||
By: |
||||||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇ | |||||
| Title: | ||||||
| ▇▇▇▇ ▇. ▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| ▇. ▇. ▇▇▇▇▇▇, III | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||||
| /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
| ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ | ||||||
[McApple Contribution Agreement Signature Page]