STOCK PURCHASE AGREEMENT
BY AND AMONG
LIH HOLDINGS, LLC,
▇▇▇▇▇ ▇. ▇▇▇▇,
THE ▇▇▇▇ FAMILY LIMITED PARTNERSHIP,
▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇ FAMILY FOUNDATION
AND
THE ▇▇▇▇ FAMILY MEMBERS
LISTED ON SCHEDULE 1 HERETO
_____________________________________
DATED AS OF SEPTEMBER 9, 1997
_____________________________________
AGREEMENT dated as of September 9, 1997, by and among
LIH HOLDINGS, LLC, a Delaware limited liability company
("Purchaser"), ▇▇▇▇▇ ▇. ▇▇▇▇, an individual residing at Rural
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▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("▇▇▇▇"), THE ▇▇▇▇ FAMILY
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LIMITED PARTNERSHIP, a Georgia limited partnership having a
principal mailing address at ▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Partnership"), ▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇ FAMILY FOUNDATION,
a non-profit corporation organized under the laws of Minnesota,
having its registered office at c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd., ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Foundation";
▇▇▇▇, the Partnership and the Foundation are sometimes hereinafter
individually referred to as a "Seller" and collectively referred
to as the "Sellers"), and THOSE INDIVIDUALS LISTED ON SCHEDULE 1
HERETO (individually, a "▇▇▇▇ Family Member," and, collectively,
the "▇▇▇▇ Family Members.")
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, each Seller is the owner of the number of
shares (the "Shares") of common stock, $.10 par value per Share
(the "Common Stock"), of ▇▇▇▇ International Holdings, Inc., a
Delaware corporation (the "Company") set forth opposite each such
Seller's name on Schedule 2 hereto, which Shares represent in the
aggregate 1,426,501 shares of the Company's Common Stock;
WHEREAS, Sellers desire to sell and transfer to
Purchaser, and Purchaser desires to purchase and acquire from
Sellers, all of Sellers' right, title and interest in and to the
Shares currently owned by Sellers, all subject to the terms and
conditions contained herein (the "Acquisition"); and
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WHEREAS, the ▇▇▇▇ Family Members desire to sell and
transfer to Purchaser, and Purchaser desires to purchase and
acquire from the ▇▇▇▇ Family Members, all of their right, title
and interest in and to an aggregate of 260,392 shares (the
"Family Member Shares") of Common Stock, all subject to the terms
and conditions contained herein; and
WHEREAS, in furtherance of the consummation of the sale
of the Shares and the Family Member Shares, Purchaser, Sellers
and the ▇▇▇▇ Family Members propose to enter into this Agreement
(certain terms used herein have the respective meanings set forth
in Article IX hereof); and
WHEREAS, the Board of Directors of the Company has
approved the Acquisition and the other transactions contemplated
by this Agreement (collectively, the "Contemplated
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Transactions");
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NOW, THEREFORE, in consideration of and in reliance
upon the mutual agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby expressly acknowledged, the parties hereto agree as
follows:
ARTICLE I
PURCHASE AND SALE
SECTION 1.1 AGREEMENT TO SELL AND PURCHASE THE SHARES;
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CONSIDERATION. Subject to the terms and conditions of this
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Agreement, and in reliance upon the representations, warranties,
covenants and agreements contained herein, at the Closing,
Sellers shall sell, transfer and deliver to Purchaser, and
Purchaser shall purchase and accept from Sellers, free and clear
of all Liens, all of Sellers' right, title and interest in and to
the Shares for a purchase price (the "Purchase Price") consisting
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of (i) $11.50 per Share payable on the Closing Date by Purchaser
to Sellers by wire transfer to accounts designated by Sellers for
that purpose, and (ii) the additional consideration calculated
and payable in accordance with the provisions of Section 1.2
hereof (the "Additional Consideration").
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SECTION 1.2 CALCULATION AND PAYMENT OF ADDITIONAL
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CONSIDERATION.
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(a) Definitions. For purposes of this Section 1.2,
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the following terms shall have the following meanings:
"Closing Price" of the Company's Common Stock on a
Trading Day shall mean the last reported sale price for Common
Stock regular way or, in case no such reported sale takes place
on such Trading Day, the average of the closing bid and asked
prices regular way for the Common Stock for such Trading Day, in
either case on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or if
the Common Stock is not listed or admitted to trading on any
national securities exchange, but is traded in the over-the-
counter market, the closing sale price of the Common Stock or, in
case no such sale is publicly reported, the average of the
closing bid and asked quotations for the Common Stock, as
reported by the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or any comparable system
or, if the Common Stock is not listed or quoted on NASDAQ or a
comparable system, the closing sale price of the Common Stock or,
in case no sale is publicly reported, the average of the closing
bid and asked prices, as furnished by two members of the National
Association of Securities Dealers, Inc. who make a market in the
Common Stock selected from time to time by the Company for that
purpose. If shares of the Company's Common Stock are not so
listed for the 20 consecutive business days preceding any
Anniversary Date (as defined below), then the average Closing
Price for shares of the Company's Common Stock for such 20 day
period shall be determined by a nationally recognized investment
banking firm selected by Purchaser and reasonably acceptable to
Sellers' Representative, provided that such investment banking
firm is not affiliated with, and does not have a direct or
indirect financial interest in, Purchaser or the Company (the
"Investment Banker"). The determination by the Investment Banker
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shall be final and binding on Purchaser and Sellers. In
addition, for purposes of this Section 1.2, a "Trading Day" shall
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mean, if the Common Stock is listed on any national securities
exchange, a business day during which such exchange was open for
trading and at least one trade of Common Stock was effected on
such exchange on such business day, or, if the Common Stock is
not listed on any national securities exchange but is traded in
the over-the-counter market, a business day during which the
over-the-counter market was open for trading and at least one
"eligible dealer" quoted both a bid and asked price for the
Common Stock. An "eligible dealer" for any day shall include any
broker-dealer who quoted both a bid and asked price for such day,
but shall not include any broker-dealer who quoted only a bid or
only an asked price for such day.
"Triggering Event" shall mean (i) the sale of all or
substantially all of the assets or capital stock of the Company,
(ii) the sale by Purchaser of 90% or more of the aggregate of the
Shares and the Family Member Shares (collectively, the "Total
Shares") (either in a single transaction or, if in more than one
transaction, the first such transaction that results in the sale
of more than 90% of the Total Shares), provided that such
transaction(s) are on an arm's-length basis with unaffiliated
third persons or (iii) the merger, consolidation or other
business combination involving the Company, other than a merger
or consolidation of the Company in which all or substantially all
of the stockholders of the Company continue as stockholders of
the entity surviving such merger or consolidation.
(b) Additional Consideration Payable Upon a Triggering
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Event.
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(b)(i) If, at any time from and after the Closing
Date and until the tenth anniversary thereof, a Triggering Event
is consummated, concurrently with the consummation of such
Triggering Event, Purchaser shall provide Sellers with written
notice thereof. Within 30 days following the consummation of
such Triggering Event, Purchaser shall pay to Sellers, subject to
the limitations set forth herein, as Additional Consideration an
aggregate amount equal to 30% of Purchaser's Actual Realized
Gain, as hereinafter defined, with respect to the Shares.
"Actual Realized Gain" shall mean the difference
between Investors Proceeds and the Minimum Return.
"Investors Proceeds" shall mean the sum of: (A)
consideration received by Purchaser with respect to the Shares in
the Triggering Event; (B) without duplication, consideration
received by Purchaser with respect to any prior sale, if any, of
any of the Shares ("Prior Sale") (it being understood that the
Purchaser shall allocate proceeds received on any Prior Sales 84.6%
to Shares and 15.4% to Family Member Shares); and (C) any dividends
or other distributions theretofore received by Purchaser with
respect to the Shares;
"Minimum Return" shall mean the sum of (A) the
aggregate amount paid for the Shares pursuant to Section 1.1,
$16,404,761; and (B) all out-of-pocket expenses incurred by
Purchaser, which shall include, without limitation, Purchaser's
organizational expenses, legal and accounting fees and expenses
and any brokers' fees, discounts or commissions paid or payable
in connection with the consummation of the transactions
contemplated by this Agreement provided such costs shall not
exceed $.40 per share, or $570,600 in the aggregate
(collectively, the "Expenses"); discounted for each component
thereof from the date of payment or incurrence to the date of the
Triggering Event or date of Option exercise pursuant to
Section 1.2(c) hereto, as the case may be, at the rate of 10% per
annum, compounded annually.
(ii) If Purchaser has the right to elect to receive,
in a Triggering Event, in whole or in part, consideration other
than cash for the Shares, the decision regarding the type of
consideration to be paid to Purchaser in connection with such
Triggering Event shall be made by Purchaser in its sole
discretion. Purchaser shall consult with Sellers' Representative
with respect to any elections which may be available to Purchaser
and the preferences of the Sellers' Representative with respect
to whether to receive non-cash consideration in whole or in part
in fulfillment of Purchaser's obligations to pay Additional
Consideration. To the extent Purchaser receives non-cash
consideration for the Shares in a Triggering Event, then
Purchaser, in satisfaction of its obligation to Sellers pursuant
to the Agreement, in its sole discretion, may pay the Additional
Consideration with non-cash consideration in the same form as
received by Purchaser; provided that the percentage of the
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Additional Consideration paid with such non-cash consideration
shall not exceed the percentage of all non-cash consideration
received by Purchaser for its Shares in the Triggering Event.
The value of any non-cash consideration received by Purchaser in
a Triggering Event shall be the value attributable to such non-
cash consideration in the Triggering Event. (Any dispute as to
the value of any non-cash consideration shall be determined as
provided in subsection (b)(iii) of this Section 1.2.)
(iii) The calculation and amount of Actual Realized
Gain shall be certified to Sellers' Representative (as defined in
Section 8.4 hereof) by the Chief Executive Officer of Purchaser
in writing concurrently with the payment by Purchaser to Sellers
of the Additional Consideration, together with any schedules or
exhibits reasonably necessary to support such calculations.
Within fifteen (15) business days after receipt of such
certificate, Sellers' Representative shall deliver a written
notice to Purchaser stating whether it has any objections
thereto, provided, however, that if Sellers' Representative
requests additional documents, financial records, work papers or
schedules reasonably necessary to support such calculations,
Sellers' Representative shall have fifteen (15) business days
after receipt of such additional materials to deliver a written
notice to Purchaser stating its objections to the calculations
prepared by Purchaser. Failure to give such timely objection
notices (or written notice that Sellers' Representative has no
such objection) shall constitute acceptance and approval of such
calculation of Actual Realized Gain and shall be final and
binding upon the Purchaser and the Sellers and Sellers'
Representative.
The Purchaser and the Sellers' Representative shall
promptly consult with each other and their legal and accounting
representatives with respect to any objections by the Sellers'
Representative pursuant to its objection notice and shall use
reasonable efforts to resolve all such objections within thirty
(30) days after delivery by Sellers' Representative of such
objection notice. If any objections remain unresolved after the
end of such 30-day period, the parties hereto shall promptly
retain (or one party if the other party fails to jointly retain
after written notice) Ernst & Young (the "Resolving Firm") to
resolve remaining objections. The parties hereto, and their
respective representatives, shall cooperate fully with the
Resolving Firm. If at the time Purchaser and/or Sellers'
Representative undertake to retain the Resolving Firm, the
Resolving Firm is engaged or during the previous two years has
been engaged in representing either the Purchaser or the Sellers
in any material respect, the Resolving Firm shall select (within
thirty (30) days of receipt of any such objections to the
Resolving Firm) a firm comparable in professional standing and
expertise which is independent with respect to both Purchaser and
Sellers and which firm shall be the Resolving Firm for all
purposes of this Agreement. The parties hereto shall give, and
shall cause their respective representatives to give, the
Resolving Firm and its representatives such reasonable access to
documents, financial records, work papers and schedules as the
Resolving Firm shall reasonably request. The Resolving Firm
shall be directed to resolve all objections within forty-five
(45) days after being retained by the parties hereto, and a
resolution by the Resolving Firm shall be final and binding on
the parties hereto. Purchaser shall pay over any further
Additional Consideration determined to be due by the Resolving
Firm within five (5) business days of final resolution by the
Resolving Firm. Fees and expenses of the Resolving Firm shall be
borne by the Sellers if the Resolving Firm determines that no
adjustment to the Purchaser's original calculation is required
and shall be borne by the Purchaser if any adjusted and
additional payment due is determined by the Resolving Firm,
provided, however, based upon reasonable circumstances, the
Resolving Firm may allocate its fees between the Sellers and
Purchaser in such manner as it determines is equitable in the
circumstances.
(iv) To illustrate the application of the above
provisions, an example calculating Additional Consideration
Payable Upon a Triggering Event (assuming the Triggering Event
occurs at an anniversary date of the Closing) is attached hereto
as Schedule 3.
(c) Additional Consideration Payable at Sellers'
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Election.
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(c)(i) If a Triggering Event is not consummated by
the fourth anniversary of the Closing Date, then Sellers shall
have the option (the "Option"), on such date, and, thereafter on
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each anniversary of the Closing Date until and including the
tenth anniversary of the Closing Date (each such date,
"Anniversary Date"), exercisable for a period of 20 days
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commencing on any such Anniversary Date, to require Purchaser to
pay to Sellers, as Additional Consideration, an aggregate amount
equal to 30% of Purchaser's Hypothetical Gain with respect to the
Shares (unless, at any time before any such Anniversary Date, a
Triggering Event shall have been consummated).
"Hypothetical Gain" shall mean the difference between
Investors Hypothetical Proceeds and the Minimum Return.
"Investors Hypothetical Proceeds" shall mean the sum
of: (A) the product expressed in dollars of (x) the number of
Shares owned by Purchaser at the date of exercise of the Option
(the "Option Exercise Date") and (y) the average of the Closing
Price for the 20 Trading Days immediately preceding the Option
Exercise Date (the "Average Share Price"); (B) without
duplication, consideration received by Purchaser with respect to
any Prior Sale, if any; and (C) any dividends or distributions
theretofore received by Purchaser with respect to the Shares.
(ii) The Option may be exercised, in whole and not in
part, on one occasion only, by Sellers. Sellers shall exercise
the Option by providing Purchaser with written notice thereof
(the "Option Exercise") executed by the Sellers' Representative.
The exercise of the Option by the Sellers' Representative shall
bind all Sellers. The amount payable by Purchaser to Sellers
pursuant to this paragraph (c) of Section 1.2 shall at
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Purchaser's option, exercisable in its sole discretion, be paid
(i) in cash within 30 days of the date of Purchaser's receipt of
notice of exercise of the Option, or (ii) in whole or in part, in
cash or by delivery of shares of Common Stock of the Company (the
number of shares to be so delivered to be equal to the Additional
Consideration payable pursuant to this Section (c) divided by the
Average Share Price). Purchaser agrees, to the extent that it
elects to deliver shares, to effect such delivery in certificates
registered in the Sellers' respective names within five business
days after receipt of the Option Exercise. Each Seller hereby
agrees not to effect any trades, directly or indirectly, in
shares of the Company's Common Stock during the 20 Trading Days
immediately preceding the exercise of the Option.
(iii) The calculation and amount of Hypothetical
Gain shall be certified (along with any documents, financial
records, work papers and schedules reasonably necessary to
support such calculations) to Sellers' Representative by the
Chief Executive Officer of Purchaser in writing concurrently with
the payment by Purchaser to Sellers of the Additional
Consideration. Sellers' Representative shall have the right to
object to such calculations and the parties shall resolve any
dispute regarding such calculations in accordance with the
procedures set forth in Section 1.2(b)(iii) hereof.
(iv) Purchaser shall furnish Sellers' Representatives,
at least ten (10) business days prior to any Anniversary Date,
information to document any Prior Sales by Purchaser during the
period prior to the date of information and Purchaser shall
forthwith after the applicable Anniversary Date update such
information with respect to any Prior Sales effected between the
date of such information and the respective Anniversary Date.
(v) To illustrate the application of the above
provisions, an example calculating Additional Consideration
Payable at Sellers' Election is attached hereto as Schedule 3.
(d) Limit on Additional Consideration In no event
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shall Purchaser be required to pay to Sellers Additional
Consideration in an aggregate amount exceeding $6,268,005. The
Additional Consideration shall be allocated among and paid to
Sellers in proportion to the amount that each Seller's Shares
bears to all Shares being sold to Purchaser pursuant to
Section 1.1 hereof and, with respect to Additional Consideration
payable in cash, shall be paid by wire transfer to accounts
designated by Sellers for that purpose.
(e) Adjustments. If the Company shall in any manner
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subdivide (by stock split, stock dividend or otherwise) or
combine (by reverse stock split or otherwise) the number of
outstanding shares of its Common Stock, then, for purposes hereof
the number of Shares shall be appropriately adjusted to give
effect to such subdivision or combination.
(f) Right to Assign Additional Consideration. Each
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Seller's right to receive the Additional Consideration shall be
assignable by such Seller, in whole or in part, to members of
such Seller's family, family trusts or family partnerships for
estate planning purposes, and, with Purchaser's prior written
consent, to any other third party; provided, however, that no
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assignment pursuant to this paragraph (f) of Section 1.2 shall be
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effective unless a copy of a duly executed and notarized
instrument of assignment among the Sellers and their assignee(s)
shall be delivered to Purchaser.
(g) No Effect on Purchaser's Ownership and Control of
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Shares. Anything herein to the contrary notwithstanding,
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Sellers' right hereunder to receive Additional Consideration
shall not represent or be deemed to be (i) any right, claim,
lien, encumbrance, restriction or other interest in or with
respect to the Shares, or (ii) any restriction on the Purchaser
(or any partner or successor thereof) exercising any right with
respect thereto, including without limitation, the right to vote
or direct the vote, dispose or direct the disposition of, or
enter into any agreement, arrangement or other understanding with
respect to the Shares; it being specifically agreed and
acknowledged by the Sellers that the sole right granted hereby to
the Sellers, and the sole obligation of Purchaser created hereby,
is to receive and pay, respectively, the Additional
Consideration, in the circumstances and amounts and in accordance
with the procedures set forth herein. Notwithstanding the
foregoing, Purchaser agrees that until it delivers the Additional
Consideration pursuant to this Section 1.2 (i) it will not
distribute all or substantially all of its assets pro rata among
its members without its members' pro rata first assuming
Purchaser's obligations under this Section 1.2 and (ii) Purchaser
agrees to preserve and keep in full force and effect its
existence as a limited liability company provided it may
incorporate as a corporation or become a partnership or limited
partnership as long as such successor assumes all Purchaser's
obligations under this Section 1.2, and (iii) Purchaser will not
sell any of the Shares or Family Member Shares to any affiliate
of Purchaser except in exchange for consideration which is at least
equal to the fair value (as determined in good faith by the
Purchaser) of the Shares or Family Member Shares so sold.
SECTION 1.3 PURCHASE OF ▇▇▇▇ FAMILY MEMBER SHARES.
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(a) Purchaser hereby agrees to purchase from each of the ▇▇▇▇
Family Members the number of shares of Common Stock of the
Company owned by such ▇▇▇▇ Family Member set forth opposite such
▇▇▇▇ Family Member's name on Schedule 1 hereto, for a purchase
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price of $11.50 per share (the "▇▇▇▇ Family Purchase Price")
payable on the Closing Date by Purchaser to such ▇▇▇▇ Family
Member by wire transfer to an account designated by such ▇▇▇▇
Family Member for that purpose. No ▇▇▇▇ Family Member shall be
entitled to any Additional Consideration in respect of the sale
of their Family Member Shares to Purchaser hereunder.
(b) Notwithstanding anything to the contrary set forth
herein, Purchaser's obligation to consummate the acquisition of
shares of Common Stock of the Company owned by ▇▇▇▇ Family
Members is expressly contingent upon Purchaser's concurrent
acquisition, pursuant to this Agreement, of the Shares, but
Purchaser's obligation to consummate the acquisition of the
Shares from the Sellers is not contingent upon Purchaser's
concurrent acquisition pursuant to this Agreement of the Family
Member Shares owned by the ▇▇▇▇ Family Members.
SECTION 1.4 CLOSING. The closing (the "Closing") of
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the Contemplated Transactions shall take place at the offices of
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P, 4200 IDS Center, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on September 9, 1997, at
10:00 a.m., local time, or at such other date, time or place as
the parties hereto shall mutually agree. The date of the Closing
is hereinafter called the "Closing Date." At the Closing (a)
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Sellers and the ▇▇▇▇ Family Members shall deliver to Purchaser
certificates representing the shares duly endorsed in blank or
accompanied by a stock power or other instrument of transfer duly
executed in blank, with signatures guaranteed by a bank or member
firm of the New York Stock Exchange and accompanied by all
requisite stock transfer tax stamps, and (b) Purchaser shall
deliver to (i) Sellers that portion of the Purchase Price payable
at the Closing as provided in Section 1.1 hereof and (ii) the
▇▇▇▇ Family Members, the ▇▇▇▇ Family Purchase Price as provided
in Section 1.3(a) hereof. The parties hereto hereby agree to
deliver at the Closing such other documents, certificates and
instruments as are specified in Article IV hereof and as
reasonably may be required to effect the sale by Sellers and ▇▇▇▇
Family Members of the shares pursuant to, and as contemplated by,
this Agreement and to consummate the Contemplated Transactions.
All events which shall occur at the Closing shall be deemed to
occur simultaneously.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS AND
▇▇▇▇ FAMILY MEMBERS
A. Sellers severally, and not jointly, represent and
warrant to Purchaser, as of the date of this Agreement and as of
the Closing Date (as if each such representation and warranty was
remade on the Closing Date), as follows:
SECTION 2.1 OWNERSHIP OF SHARES. (a) Each Seller is
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the beneficial owner of the Shares set forth opposite such
Seller's name on Schedule 2 hereto. To the best knowledge of
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Sellers, as of the date hereof, the Shares constitute
approximately 32% of the outstanding shares of Common Stock of
the Company, without giving effect to currently outstanding stock
options. The Shares are lawfully owned by the Sellers free and
clear of any Lien of any kind, and have been owned by Sellers
since February 1, 1997. There are no outstanding options,
warrants, commitments, agreements or any other rights of any
character (except as created by this Agreement) entitling any
person other than Purchaser to acquire the Shares. The Shares
are fully paid and non-assessable, with no personal liability
attaching to the ownership thereof, and the Shares are
transferable to Purchaser under the terms of this Agreement.
Sellers do not own any options or other rights to purchase Common
Stock or any other security or instrument convertible into or
exchangeable for Common Stock of the Company.
(b) Each Seller has the power to dispose of all of
his, her or its Shares, with no restrictions on such rights,
subject to the terms of this Agreement.
SECTION 2.2 POWER; BINDING AGREEMENTS. ▇▇▇▇ has the
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legal capacity, power and authority to enter into and perform all
of his obligations under this Agreement. Each of the Trust and
the Foundation has the requisite power and authority (in
accordance with the terms of its organizational documents) to
enter into and perform all of its obligations under this
Agreement. Upon delivery of the Shares to Purchaser hereunder,
Purchaser will acquire good title thereto free and clear of all
Liens and claims of others of every kind and description, subject
to applicable federal and state securities laws. The execution,
delivery and performance of this Agreement by each Seller will
not violate any agreement to which such Seller is a party or by
which such Seller is bound, including, without limitation, any
trust agreement, voting agreement, stockholders agreement, voting
trust, partnership or other agreement. This Agreement has been
duly and validly executed and delivered by each Seller and
constitutes the legal, valid and binding agreement of such
Seller, enforceable against such Seller in accordance with its
terms.
SECTION 2.3 NO CONFLICTS; CONSENTS. (a) Neither the
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execution, delivery or performance by any Seller of this
Agreement nor the consummation of the Contemplated Transactions
requires such Seller to the best of his, her or its knowledge, to
obtain any consent, approval or action of or waiver from, or make
any filing with, or give any notice to, any state or federal
public body or authority or any other person, and (b) neither the
execution, delivery or performance by any Seller of this
Agreement nor the consummation of the Contemplated Transactions
nor compliance by any Seller with any of the provisions hereof
shall (i) conflict with or result in any breach of any applicable
trust, partnership agreement or other agreement applicable to
such Seller, (ii) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any
kind to which such Seller is a party or by which such Seller or
any of his or its properties or assets may be bound, or (iii)
violate any order, writ, injunction, decree, judgment, statute,
rule or regulation applicable to such Seller or any of such
Seller's properties or assets.
SECTION 2.4 CERTIFICATES REPRESENTING SHARES. The
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Shares and the certificates representing such Shares are now, and
at all times after the date hereof and until the Closing Date
will be, held by Sellers, or by a nominee or custodian for the
benefit of Sellers, free and clear of all Liens, proxies, voting
trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder.
SECTION 2.5 BROKERS. Sellers have not taken any
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action in connection with this Agreement or the transactions
contemplated hereby so as to give rise to any claim against
Purchaser for any brokerage or finder's commissions, fees or
similar compensation.
SECTION 2.6 DISCLOSURE. (a) Neither this Agreement
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nor the Schedules hereto includes or will include any untrue
statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements contained
in this Agreement or the Schedules hereto not misleading.
(b) To the best knowledge of Sellers, all reports,
registration statements and other documents of the Company filed
by the Company with the Securities and Exchange Commission (the
"Commission") during the three year period immediately preceding
----------
the Closing Date (collectively, the "Company SEC Documents") have
---------------------
been prepared in accordance with, and comply in all material
respects with, the applicable rules and regulations promulgated
by the Commission under the Securities Act of 1933, as amended
(the "Securities Act") and the Securities Exchange Act of 1934,
--------------
as amended (the "Exchange Act"). To the best knowledge of
------------
Sellers, none of the Company SEC Documents at the time it was
filed or became effective, as the case may be, included, or as of
the date hereof includes (except to the extent superseded by any
report, registration statement or document subsequently filed
with the Commission) any untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements contained therein not misleading. All representations
and warranties made by Sellers herein will be deemed to have been
relied on by Purchaser (notwithstanding any investigation by
Purchaser).
B. Each ▇▇▇▇ Family Member severally represents and
warrants to Purchaser, as of the date of this Agreement and as of
the Closing Date (as if each such representation and warranty was
remade as of the Closing Date) as follows:
SECTION 2.7 OWNERSHIP OF SHARES. (a) Each ▇▇▇▇
-------------------
Family Member is the beneficial owner of the Family Member Shares
set forth opposite such ▇▇▇▇ Fund Member's name on Schedule 1
----------
hereto. The Family Member Shares are lawfully owned by each ▇▇▇▇
Family Member free and clear of any Lien of any kind, and have
been owned by such ▇▇▇▇ Family Member since February 1, 1997.
There are no outstanding options, warrants, commitments,
agreements or any other rights of any character (except as
created by this Agreement) entitling any person other than
Purchaser to acquire the Family Member Shares. The Family Member
Shares are fully paid and non-assessable, with no personal
liability attaching to the ownership thereof, and the Family
Member Shares are transferable to Purchaser under the terms of
this Agreement. ▇▇▇▇ Family Members do not own any options or
other rights to purchase Common Stock or any other security or
instrument convertible into or exchangeable for Common Stock of
the Company.
(b) Each ▇▇▇▇ Family Member has the power to dispose
of all of his or her Shares, with no restrictions on such rights,
subject to the terms of this Agreement.
SECTION 2.8 POWER; BINDING AGREEMENTS. Each ▇▇▇▇
-------------------------
Family Member has the legal capacity, power and authority to
enter into and perform all of his or her obligations under this
Agreement. Upon delivery of the ▇▇▇▇ Family Member Shares to
Purchaser hereunder, Purchaser will acquire good title thereto
free and clear of all Liens and claims of others of every kind
and description, subject to applicable federal and state
securities laws. The execution, delivery and performance of this
Agreement by such ▇▇▇▇ Family Member will not violate any
agreement to which such ▇▇▇▇ Family Member is a party or by which
such ▇▇▇▇ Family Member is bound, including, without limitation,
any trust agreement, voting agreement, stockholders agreement,
voting trust, partnership or other agreement. This Agreement has
been duly and validly executed and delivered by such ▇▇▇▇ Family
Member and constitutes the legal, valid and binding agreement of
such ▇▇▇▇ Family Member, enforceable against such ▇▇▇▇ Family
Member in accordance with its terms.
SECTION 2.9 NO CONFLICTS; CONSENTS. (a) Neither the
----------------------
execution, delivery or performance by such ▇▇▇▇ Family Member of
this Agreement nor the consummation of the Contemplated
Transactions requires, to the best of his, her or its knowledge,
such ▇▇▇▇ Family Member to obtain any consent, approval or action
of or waiver from, or make any filing with, or give any notice
to, any state or federal public body or authority or any other
person, and (b) neither the execution, delivery or performance by
such ▇▇▇▇ Family Member of this Agreement nor the consummation of
the Contemplated Transactions nor compliance by such ▇▇▇▇ Family
Member with any of the provisions hereof shall (i) conflict with
or result in any breach of any applicable trust, partnership
agreement or other agreement applicable to such ▇▇▇▇ Family
Member, (ii) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation,
material modification or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which
such ▇▇▇▇ Family Member is a party or by which such ▇▇▇▇ Family
Member or any of his or its properties or assets may be bound, or
(iii) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to such ▇▇▇▇ Family Member
or any of such ▇▇▇▇ Family Member's properties or assets.
SECTION 2.10 CERTIFICATES REPRESENTING SHARES. The
--------------------------------
▇▇▇▇ Family Member Shares and the certificates representing such
▇▇▇▇ Family Member Shares are now, and at all times after the
date hereof and until the Closing Date will be, held by such ▇▇▇▇
Family Member, or by a nominee or custodian for the benefit of
such ▇▇▇▇ Family Member, free and clear of all Liens, proxies,
voting trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever, except for any such
encumbrances or proxies arising hereunder.
SECTION 2.11 BROKERS. Such ▇▇▇▇ Family Member has not
-------
taken any action in connection with this Agreement or the
transactions contemplated hereby so as to give rise to any claim
against Purchaser for any brokerage or finder's commissions, fees
or similar compensation.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers and each ▇▇▇▇
Family Member, as of the date of this Agreement and as of the
Closing Date (as if each such representation and warranty was
remade on the Closing Date), as follows:
SECTION 3.1 EXISTENCE. Purchaser is a limited
---------
liability company duly organized, validly existing and in good
standing under the laws of the State of Delaware.
SECTION 3.2 AUTHORITY RELATIVE TO THIS AGREEMENT.
------------------------------------
Purchaser has full power and authority to execute and deliver
this Agreement and to consummate the Contemplated Transactions.
The execution, delivery and performance by Purchaser of this
Agreement and the consummation by it of the Contemplated
Transactions have been duly and validly authorized and approved
by Purchaser and no other proceedings on the part of Purchaser
are necessary to authorize the execution and delivery by
Purchaser of this Agreement or the consummation of the
Contemplated Transactions. This Agreement has been duly and
validly executed and delivered by Purchaser and constitutes the
legal, valid and binding agreement of Purchaser, enforceable
against Purchaser in accordance with its terms.
SECTION 3.3 NO CONFLICTS; CONSENTS. Neither the
----------------------
execution, delivery or performance by Purchaser of this Agreement
nor the consummation of the Contemplated Transactions (i)
violates any provision of the Operating Agreement of Purchaser;
(ii) requires Purchaser to obtain any consent, approval or action
of or waiver from, or make any filing with, or give any notice
to, any state or federal public body or authority or any other
person; or (iii) violates any material mortgage, indenture,
lease, agreement or other instrument, permit, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or
regulation applicable to Purchaser or by which it (or any of its
properties or assets) is subject or bound. No filing is required
with respect to the transactions contemplated hereunder under the
provisions of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Anti-Trust Improvements Act
of 1976.
SECTION 3.4 PURCHASE FOR INVESTMENT. Purchaser is
-----------------------
acquiring the Shares for its own account for investment, and not
with a view to any distribution thereof. Purchaser acknowledges
that the certificates evidencing the Shares will contain a legend
restricting transfer thereof pursuant to the Securities Act and
that the Shares may not be sold, transferred or otherwise
disposed of unless pursuant to an effective registration
statement under the Securities Act covering the Shares or
pursuant to an exemption therefrom.
SECTION 3.5 BROKERS. Purchaser has not taken any
-------
action in connection with this Agreement or the transactions
contemplated hereby so as to give rise to any claim against any
Seller for any brokerage or finder's commissions, fees or similar
compensation.
ARTICLE IV
CONDITIONS PRECEDENT
SECTION 4.1 CONDITIONS TO THE OBLIGATIONS OF SELLERS
----------------------------------------
AND PURCHASER. The obligations of Sellers and Purchaser
-------------
hereunder to consummate each of the Contemplated Transactions are
subject to the fulfillment to their reasonable satisfaction prior
to or at the Closing of each of the following conditions, any of
which may be waived by the party for whose benefit such condition
has been imposed:
(a) Consummation of the Contemplated Transactions
shall not have been prohibited or restrained by any order,
injunction, decree or judgment of any court, governmental agency
or other regulatory agency or commission and there shall not have
been promulgated, entered, issued or determined (by any court,
governmental agency or other regulatory agency or commission of
competent jurisdiction) to be applicable to this Agreement any
law, regulation, order, injunction, decree or judgment making the
Contemplated Transactions illegal;
(b) All approvals or consents of, or waivers by, third
parties which are required in connection with the Contemplated
Transactions shall have been obtained, which approvals shall be
without conditions or with conditions which are reasonably
acceptable to Purchaser and Sellers and such approvals shall be
effective and shall remain in force.
SECTION 4.2 ADDITIONAL CONDITIONS TO PURCHASER'S
------------------------------------
OBLIGATIONS. Purchaser's obligations to consummate the
-----------
Contemplated Transactions at the Closing are subject to the
fulfillment, to Purchaser's reasonable satisfaction, prior to or
at the Closing, of each of the following additional conditions,
any of which may be waived by Purchaser:
(a) Representations and Warranties. All
------------------------------
representations and warranties of each Seller contained herein
shall be true and accurate at and as of the Closing Date.
(b) Performance. Each Seller shall have performed and
-----------
complied with all agreements, covenants and conditions required
by this Agreement to be performed and complied with by him or it
prior to or on the Closing Date.
(c) Certificates. Purchaser shall have received
------------
certificates, each dated the Closing Date, signed by authorized
representatives of each Seller to the effect that the conditions
set forth in Sections 4.2(a) and 4.2(b) hereof have been
satisfied.
(d) ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇ Consents. ▇▇▇▇▇ ▇▇▇▇ and
---------------------------------
▇▇▇▇ ▇▇▇▇, shall have executed and delivered to Purchaser a consent
acknowledging and authorizing ▇▇▇▇▇ ▇▇▇▇'▇ and ▇▇▇▇ ▇▇▇▇'▇ sale, as
the case may be, of the Shares to the extent the Shares constitute
community property and otherwise precluding ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇,
as the case may be, from making future claims against Purchaser with
respect to the Shares or the proceeds thereof in the form of
Exhibit C hereto.
---------
(e) Agreement With the Company. Execution and
--------------------------
delivery by the Company simultaneously with the Closing of
agreements relating to (i) matters of governance of the Company
(the "Governance Agreement") and (ii) financial advisory services
--------------------
to be rendered to the Company (the "Services Agreement"), in the
------------------
forms attached hereto as Exhibits A and B, respectively.
----------------
(f) Additional Documents. Each Seller shall have
--------------------
delivered, or caused to have been delivered, any and all other
documents reasonably requested by Purchaser to evidence each
Seller's compliance with the conditions set forth in this Article
IV.
SECTION 4.3 ADDITIONAL CONDITIONS TO SELLERS'
---------------------------------
OBLIGATIONS. Sellers' obligations to deliver (or cause to be
-----------
delivered) the Shares to Purchaser at the Closing are subject to
the fulfillment, to ▇▇▇▇'▇ reasonable satisfaction, prior to or
at the Closing, of each of the following additional conditions,
any of which may be waived by ▇▇▇▇:
(a) Representations and Warranties. All
------------------------------
representations and warranties of Purchaser contained herein
shall be true and accurate at and as of the Closing Date.
(b) Performance. Purchaser shall have performed and
-----------
complied with all agreements, covenants and conditions required
by this Agreement to be performed and complied with by it prior
to or on the Closing Date.
(c) Certificate. Sellers shall have received a
-----------
certificate, dated the Closing Date, signed by a duly authorized
officer of Purchaser to the effect that the conditions set forth
in Sections 4.3(a) and 4.3(b) hereof have been satisfied.
(d) Additional Documents. Purchaser shall have
--------------------
delivered, or caused to have been delivered, any and all other
documents reasonably requested by Sellers to evidence Purchaser's
compliance with the conditions set forth in this Article IV.
ARTICLE V
COVENANTS AND AGREEMENTS
The parties covenant and agree as follows:
SECTION 5.1 NO SOLICITATION. Beginning on the date
---------------
hereof and ending on the Closing Date, each Seller and ▇▇▇▇
Family Member shall not, in his, her or its capacity as such,
directly or indirectly, initiate, solicit (including by way of
furnishing information), encourage or respond to or take any
other action knowingly to facilitate, any inquiries or the making
of any proposal by any person or entity (other than Purchaser or
any Affiliate of Purchaser) with respect to the Company that
constitutes or reasonably may be expected to lead to, an
Acquisition Proposal, or enter into or maintain or continue
discussions or negotiate with any person or entity in furtherance
of such inquiries or to obtain any Acquisition Proposal, or agree
to or endorse any Acquisition Proposal, or authorize or permit
any person or entity acting on behalf of such Seller or Lund
Family Member to do any of the foregoing. If any Seller or ▇▇▇▇
Family Member receives any inquiry or proposal regarding any
Acquisition Proposal, such Seller or ▇▇▇▇ Family Member shall
promptly inform Purchaser of that inquiry or proposal and the
details thereof. "Acquisition Proposal" means discussions or
--------------------
negotiations with, or providing any information or assistance to,
or entering into any agreement with any person or group of
persons (other than Purchaser) concerning any acquisition of any
equity interest in, or in a merger, consolidation, liquidation,
dissolution, disposition of all or substantially all of the
assets of, the Company or any disposition of any of the capital
stock of the Company (other than (a) pursuant to the transactions
contemplated by this Agreement or (b) dispositions pursuant to
death, divorce or by operation of law).
SECTION 5.2 EXPENSES. The parties to this Agreement
--------
shall bear their respective expenses incurred in connection with
the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including, without
limitation, all fees and expenses of agents, representatives,
counsel and accountants.
SECTION 5.3 BEST EFFORTS; FURTHER ASSURANCES. The
--------------------------------
parties hereto shall execute such other documents and papers and
take such further actions as may be reasonably required or
desirable to carry out the provisions hereof and the transactions
contemplated hereby. Each such party shall use his or its best
efforts to fulfill, or obtain the fulfillment of, the conditions
precedent to effect the transactions contemplated in this
Agreement as promptly as practicable.
SECTION 5.4 MATTERS RELATING TO THE SHARES. Each
------------------------------
Seller and ▇▇▇▇ Family Member hereby agrees that during the
period commencing on the date hereof and continuing until the
Closing Date, at any meeting of the holders of Common Stock of
the Company, however called, or in connection with any written
consent of the holders of Common Stock of the Company, such
Seller or ▇▇▇▇ Family Member shall vote (or cause to be voted)
the Shares then owned by such Seller or ▇▇▇▇ Family Member (a)
against any action or agreement that would result in a breach, in
any respect, of any covenant, representation or warranty or any
other obligation or agreement of such Seller or ▇▇▇▇ Family
Member under this Agreement; and (b) except as otherwise agreed
to in writing in advance by Purchaser, against the following
actions (other than the Contemplated Transactions): (i) any
extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company
or its subsidiaries; (ii) a sale, lease or transfer of a material
amount of assets of the Company or its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of
the Company or its subsidiaries; (iii) (1) any change in a
majority of the persons who constitute the board of directors of
the Company; (2) any change in the present capitalization of the
Company or any amendment of Company's Certificate of
Incorporation or By-laws; (3) any other material change in the
Company's corporate structure or business; or (4) any other
action involving the Company or its subsidiaries which is
intended, or could reasonably be expected, to impede, interfere
with, delay, postpone, or materially adversely affect the
Contemplated Transactions hereunder. No Seller or ▇▇▇▇ Family
Member shall enter into any agreement or understanding with any
person or entity the effect of which would be to violate the
provisions and agreements contained in this Section 5.4.
SECTION 5.5 RESTRICTION ON TRANSFER, PROXIES AND NON-
-----------------------------------------
INTERFERENCE. Beginning on the date hereof and ending on the
------------
Closing Date, no Seller or ▇▇▇▇ Family Member shall (a) directly
or indirectly, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with
respect to, or consent to the offer for sale, transfer, tender,
pledge, encumbrance, assignment or other disposition of, any or
all of the Shares owned by such Seller or ▇▇▇▇ Family Member or
any interest therein; (b) except as contemplated by this
Agreement, grant any proxies or powers of attorney, deposit any
Shares into a voting trust or enter into a voting agreement with
respect to any Shares; or (c) take any action that would make any
representation or warranty of such Seller or ▇▇▇▇ Family Member
contained herein untrue or incorrect or have the effect of
preventing or disabling such Seller or Lund Family Member from
performing such Seller or ▇▇▇▇ Family Member's obligations under
this Agreement.
SECTION 5.6 STOP TRANSFER; CHANGES IN SHARES. Each
--------------------------------
Seller and ▇▇▇▇ Family Member agrees with, and covenants to,
Purchaser that such Seller shall not request that the Company
register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of the
Shares, unless such transfer is made in compliance with this
Agreement. In the event of a stock dividend or distribution, or
any change in the Common Stock of the Company by reason of any
stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Shares" shall be deemed to refer
to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all
of the Shares may be changed or exchanged and the Purchase Price
shall be appropriately adjusted. Each Seller and ▇▇▇▇ Family
Member shall be entitled to receive any cash dividend paid by the
Company during the term of this Agreement until the Closing Date.
SECTION 5.7 GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF
------------------------------------------
PROXY. (a) Each Seller and ▇▇▇▇ Family Member hereby
-----
irrevocable grants to, and appoints ▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, in his capacity as a duly authorized officer of
Purchaser, such Seller's or ▇▇▇▇ Family Member's proxy and
attorney-in-fact (with full power of substitution), for and in
the name, place and stead of such Seller or ▇▇▇▇ Family Member's,
to vote the Shares owned by such Seller or ▇▇▇▇ Family Member's,
or grant a consent or approval in respect of such Shares, against
any Acquisition Proposal or other matter set forth in Section 5.1
hereof.
(b) Each Seller and ▇▇▇▇ Family Member represents that
any proxies heretofore given in respect of the Shares owned by
such Seller or ▇▇▇▇ Family Member's are not irrevocable, and that
any such proxies are hereby revoked.
(c) Each Seller and ▇▇▇▇ Family Member hereby affirms
that the irrevocable proxy set forth in this Section 5.7 is given
in connection with the execution of this Agreement, and that such
irrevocable proxy is given to secure the performance of the
duties of such Seller or ▇▇▇▇ Family Member's under this
Agreement. Each Seller and ▇▇▇▇ Family Member hereby further
affirms that the irrevocable proxy is coupled with an interest
and may under no circumstances be revoked. Each Seller and ▇▇▇▇
Family Member hereby ratifies and confirms all that such
irrevocable proxy may lawfully do or cause to be done by virtue
hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e)
of the General Corporation Law of the State of Delaware.
SECTION 5.8 BINDING EFFECT. Each Seller and ▇▇▇▇
--------------
Family Member agrees that this Agreement and the obligations
hereunder shall attach to the shares owned by such Seller and
▇▇▇▇ Family Member and shall be binding upon any person or entity
to which legal or beneficial ownership of such shares shall pass,
whether by operation of law or otherwise, including, without
limitation, such party's heirs, guardians, administrators or
successors.
ARTICLE VI
TERMINATION
SECTION 6.1 GROUNDS FOR TERMINATION. This Agreement
-----------------------
may not be terminated at any time prior to the Closing Date;
except that (a) this Agreement may be terminated by the mutual
------
consent of ▇▇▇▇ and Purchaser; (b) ▇▇▇▇ or Purchaser may
terminate, by written notice to the other party, if (i) the
Closing shall not have occurred through no fault of Sellers or
Purchaser prior to October 31, 1997, or such later date as may be
agreed by Purchaser and ▇▇▇▇, or (ii) any court or other Federal
or state agency of competent jurisdiction shall have issued an
order or decree restraining, enjoining or otherwise prohibiting
any of the parties from consummating any of the transactions
contemplated by this Agreement and either (A) such order or
decree is not dissolved or vacated prior to October 31, 1997, or
such later date as may be agreed by Purchaser and ▇▇▇▇; provided
--------
that, in the event such an order or decree shall be issued, the
parties hereto shall use their best efforts to have the same
dissolved or vacated prior to such date or (B) in the opinion of
counsel to the party giving notice of termination (which opinion
is reasonable as to its factual basis and legal conclusions in
the opinion of counsel to the party receiving such notice), such
order or decree is not likely to be dissolved or vacated within
30 days from the date such notice of termination is given; (c)
Purchaser may terminate, by written notice to Sellers, if a
representation or warranty of any Seller is incorrect or if any
Seller breaches any of his or its covenants or agreements
contained in this Agreement; (d) Sellers may terminate, such
termination to be effective as to all of the Shares, by written
notice to Purchaser, if a representation or warranty of Purchaser
is incorrect or if Purchaser breaches any of its covenants or
agreements contained in this Agreement; and (e) Purchaser may
terminate its obligation to purchase shares from any ▇▇▇▇ Family
Member by written notice to such ▇▇▇▇ Family Member if a
representation or warranty of such ▇▇▇▇ Family Member is
incorrect or if such ▇▇▇▇ Family Member breaches any of its
covenants or agreements contained in this Agreement.
SECTION 6.2 EFFECT OF TERMINATION. If this Agreement
---------------------
is terminated pursuant to Section 6.1, such termination shall be
without liability of either party, or any stockholder, director,
trustee, officer, employee, partner, agent, consultant or
representative of such party, to the other party to this
Agreement; provided that, if such termination shall result from
--------
the incorrectness of a representation or warranty of a party
contained in this Agreement or the breach by a party of the
covenants or agreements of such party contained in this
Agreement, such party shall be fully liable for any and all costs
and expenses (including reasonable attorneys' fees and
disbursements) sustained or incurred by the other party.
ARTICLE VII
INDEMNIFICATION
SECTION 7.1 SURVIVAL OF REPRESENTATIONS AND
-------------------------------
WARRANTIES. All representations and warranties contained herein
----------
or made pursuant hereto shall survive the Closing and continue in
full force and effect for a period of three years thereafter.
SECTION 7.2 INDEMNITY. Purchaser, each Seller and
---------
▇▇▇▇ Family Member shall indemnify and hold the other harmless to
the extent provided in this Article VII from and against any and
all losses, damages, liabilities, claims, demands, judgments,
settlements, costs and expenses of any nature whatsoever
(including reasonable attorneys' fees and disbursements)
resulting from or arising out of the breach of any then surviving
representation or warranty or the non-performance, partial or
total, of any covenant or agreement of the indemnifying party
contained in this Agreement, in either case, to the extent not
waived by the indemnified party.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 NOTICES. (a) Any notice or other
-------
communication required or permitted hereunder shall be in writing
and shall be delivered personally by hand or by recognized
overnight courier, telecopied or mailed (by registered or
certified mail, postage prepaid) as follows:
(i) If to Purchaser, one copy to:
LIH HOLDINGS, LLC
c/o Harvest Partners, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Manager
with a simultaneous copy to:
▇▇▇▇ & Priest LLP
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
(ii) If to ▇▇▇▇, one copy to:
▇▇▇▇▇ ▇. ▇▇▇▇
Rural Route 2, Box 2030
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a simultaneous copy to:
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P.
4200 IDS Center
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
(iii) If to the Partnership, one copy to:
The ▇▇▇▇ Family Limited Partnership
▇▇▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a simultaneous copy to:
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P.
4200 IDS Center
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
(iv) If to the Foundation, one copy to:
▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ Family Foundation
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a simultaneous copy to:
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.P.
4200 IDS Center
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
; and
(v) Any ▇▇▇▇ Family Member to the
address set forth next to his, her or its
name on Schedule 1
----------
(b) Each such notice or other communication shall be
effective (i) if given by telecopier, when such telecopy is
transmitted to the telecopier number specified in Section 8.1(a)
(with confirmation of transmission), or (ii) if given by any
other means, when delivered at the address specified in Section
8.1(a). Any party by notice given in accordance with this
Section 8.1 to the other parties may designate another address
(or telecopier number) or person for receipt of notices
hereunder. Notices by a party may be given by counsel to such
party.
SECTION 8.2 ASSIGNMENT. Except as otherwise provided
----------
in Section 1.2 hereof, this Agreement may not be assigned by
-----------
Sellers or any ▇▇▇▇ Family Member, except that all of the terms
and provisions of this Agreement shall inure to the benefit of
and be binding upon the heirs, legal representatives, successors
and assigns of each Seller or ▇▇▇▇ Family Member. Nothing in
this Agreement, express or implied, is intended to or shall
confer on any person other than the parties hereto or their
respective successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 8.3 MISCELLANEOUS. This Agreement and the
-------------
Schedules and Exhibits hereto embody the entire agreement and
understanding between the parties hereto with respect to the
subject matter hereof. This Agreement may be changed, waived,
discharged or terminated only by an instrument in writing signed
by the party against which enforcement of such change, waiver,
discharge or termination is sought. No course of dealing and no
delay on the part of any party hereto in exercising any right,
power or remedy under this Agreement shall operate as a waiver
thereof, or otherwise prejudice any party's rights, powers and
remedies. No right, power or remedy conferred by this Agreement
upon any party hereto shall be exclusive of any other right,
power or remedy referred to herein or now or hereafter available
at law, in equity, by statute or otherwise. This Agreement shall
be construed in accordance with and governed by the laws of the
State of Delaware. If any term of this Agreement or application
thereof shall be invalid or unenforceable, the remainder of this
Agreement shall remain in full force and effect.
SECTION 8.4 APPOINTMENT OF SELLERS' REPRESENTATIVE.
--------------------------------------
Each of the Sellers hereby appoints ▇▇▇▇▇ ▇. ▇▇▇▇ (the "Sellers'
Representative") with full power and authority to act as the
agent of such Seller in connection with the provisions of this
Agreement and to perform all acts required thereunder, including,
but not limited to, making all decisions relating to the exercise
of the Option pursuant to Section 1.2 hereof or the resolution
and settlement of any disputes under Section 1.2 hereof relating
to the determination of Additional Consideration thereunder,
including, without limitation, receiving and delivering all
notices, giving all approvals and waivers, entering into all
amendments and exercising all rights of Sellers thereunder. If
the Sellers' Representative shall die, become totally
incapacitated, shall otherwise be unable to perform his or her
duties or shall resign from such position, the Sellers who
represent a majority percentage of the Shares sold on the Closing
Date pursuant to Section 1.1 hereof shall appoint a new Sellers'
Representative to fill such vacancy and written notice of such
action shall be given to the Purchaser and all Sellers. All
decisions and actions of the Sellers' Representative shall be
binding upon all of the Sellers and no Seller shall have the
right to object, dissent from, protest or otherwise contest the
same. The Purchaser shall be permitted to rely upon any written
instrument or document executed on behalf of the Sellers'
Representative.
SECTION 8.5 COUNTERPARTS. The Agreement may be
------------
executed in any number of counterparts, each of which shall be
deemed to be an original as against any party whose signature
appears thereon, and all of which shall together constitute one
and the same instrument. This Agreement shall become binding
when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
ARTICLE IX
DEFINITIONS
SECTION 9.1 DEFINITIONS. (a) The following terms, as
-----------
used herein, have the following meanings:
"Affiliate" of any person means any other person,
---------
directly or indirectly through one or more intermediary persons,
controlling, controlled by or under common control with such
person.
"Agreement" or "this Agreement" means, and the words
--------- --------------
"herein", "hereof" and "hereunder" and words of similar import
------ ------ ---------
refers to, this agreement as it from time to time may be amended.
"Lien" means, with respect to any asset, any mortgage,
----
lien (including mechanics, warehousemen, laborers and landlord's
liens), claim, pledge, charge, security interest, preemptive
right, right of first refusal, option, judgment, title defect or
encumbrance of any kind in respect of or affecting such asset.
The term "person" means an individual, corporation,
------
partnership, joint venture, association, trust, unincorporated
organization or other entity, including a government or political
subdivision or an agency or instrumentality thereof.
The term "voting power" when used with reference to the
------------
capital stock of, or units of equity interests in, any person
means the power under ordinary circumstances (and not merely upon
the happening of a contingency) to vote in the election of
directors of such person (if such person is a corporation) or to
participate in the management and control of such person (if such
person is not a corporation).
(b) The following additional terms are defined in the
following sections of this Agreement:
TERM SECTION
---- -------
Acquisition Recital
Acquisition Proposal 5.1
Additional Consideration 1.1
Closing 1.4
Closing Date 1.4
Commission 2.6(b)
Company Recital
Company SEC Documents 2.6(b)
Contemplated Transactions Recital
Exchange Act 2.6(b)
Family Member Shares Recital
Foundation Recital
Governance Agreement 4.2(e)
▇▇▇▇ Recital
▇▇▇▇ Family Members Recital
Purchase Price 1.1
Purchaser Recital
Resolving Firm 1.2(b)
Securities Act 2.6(b)
Sellers Recital
Sellers' Representative 8.4
Services Agreement 4.2(e)
Shares Recital
Trust Recital
SECTION 9.2 INTERPRETATION. Unless the context
--------------
otherwise requires, the terms defined in Section 9.1 shall have
the meanings herein specified for all purposes of this Agreement,
applicable to both the singular and plural forms of any of the
terms defined herein. When a reference is made in this Agreement
to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in
this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or
"including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation."
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date set forth above.
LIH HOLDINGS, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
THE ▇▇▇▇ FAMILY LIMITED PARTNERSHIP
By: /s/ The ▇▇▇▇ Family Limited Partnership
------------------------------------------
Name:
Title:
/s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ AND ▇▇▇▇▇ ▇▇▇▇ FAMILY FOUNDATION
By: /s/ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ Family Foundation
------------------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇ IRREVOCABLE MINORS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇ ▇▇▇▇▇▇ IRREVOCABLE MINORS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ IRREVOCABLE MINORS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇ ▇▇▇▇ IRREVOCABLE MINORS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ IRREVOCABLE
MINORS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ IRREVOCABLE
MINORS TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ "FAMILY MEMBER SHARES"
SCHEDULE 1
SHARES NAME AND ADDRESS
------ ----------------
4,115 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Trustees
▇▇▇▇▇ ▇▇▇▇ Irrevocable Minors Trust
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4,115 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Trustees
▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Minors Trust
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
64,415 ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
80,000 ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
28,249 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4,115 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Trustees
▇▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable Minors Trust
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4,115 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Trustees
▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable Minors Trust
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4,115 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Trustees
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Irrevocable Minors
Trust
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
4,115 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Trustees
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Irrevocable Minors
Trust
c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
49,179 ▇▇▇▇▇▇ ▇. ▇▇▇▇
c/o ▇▇▇▇▇ Automotive
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
13,869 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
260,392
=======
▇▇▇▇▇ ▇▇▇▇ "SHARES"
SCHEDULE 2
SHAREHOLDER SHARES CERTIFICATE NO. LOCATION
----------- ------ --------------- --------
▇▇▇▇▇ ▇. ▇▇▇▇ 915,430 #6367 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Rural ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ 68,000 #6469 ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 43,171 Street name ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------
1,026,601 ▇▇▇▇▇ ▇▇▇▇▇▇▇,
no certificate number
▇▇▇▇ ▇. ▇▇▇▇ 100,000 #5425 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Rural ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ 100,000 #5426 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 200,000
▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ 67,900 Street name Piper ▇▇▇▇▇ ▇▇▇▇▇▇▇
Jaffray,
Family Foundation
The ▇▇▇▇ Family 132,000 #6468 ▇▇▇▇▇ ▇▇▇▇▇▇▇
Limited Partnership
SCHEDULE 3
Assumptions
Stock Purchase Price $11.50
Estimated Purchase Expenses $ 0.40
------
Total Purchase Price $11.90
Return Hurdle Rate 10.0%
Harvest Share after Hurdle 70%
AL Share after Hurdle 30%
Payout Cap per share $ 4.39 per share
Payout Cap ($ in millions) $ 6.27
Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
------ ------ ------ ------ ------ ------ ------ ------ ------ -------
Hurdle Price per 13.09 14.40 15.84 17.42 19.17 21.08 23.19 25.51 26.06 30.87
share
Per Share Earnout Valuation
-------------------------------------------------------------
Realized Proceeds ($ per share)
per share Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
--------- ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
21.00 2.37 1.88 1.55 1.07 0.55 0.00 0.00 0.00 0.00 0.00
23.50 3.12 2.73 2.30 1.82 1.30 0.73 0.09 0.00 0.00 0.00
26.00 3.87 3.48 3.05 2.57 2.05 1.48 0.84 0.15 0.00 0.00
28.50 4.39 4.23 3.80 3.32 2.80 2.23 1.59 0.90 0.13 0.00
31.00 4.39 4.39 4.39 4.07 3.55 2.98 2.34 1.65 0.88 0.04
33.50 4.39 4.39 4.39 4.39 4.30 3.73 3.09 2.40 1.63 0.79
Total Earnout Payment
-------------------------------------------------------------
Realized Proceeds ($ in millions)
per share Year 1 Year 2 Year 3 Year 4 Year 5 Year 6 Year 7 Year 8 Year 9 Year 10
--------- ------ ------ ------ ------ ------ ------ ------ ------ ------ -------
21.00 3.39 2.82 2.21 1.53 0.79 0.00 0.00 0.00 0.00 0.00
23.50 4.45 3.89 3.28 2.60 1.86 1.03 0.13 0.00 0.00 0.00
26.00 5.52 4.96 4.35 3.67 2.93 2.10 1.20 0.21 0.00 0.00
28.50 6.27 6.03 5.42 4.74 3.99 3.17 2.27 1.28 0.19 0.00
31.00 6.27 6.27 6.27 5.81 5.06 4.24 3.34 2.35 1.26 0.00
33.50 6.27 6.27 6.27 6.27 6.13 5.31 4.41 3.42 2.33 1.13
EXHIBIT A
EXHIBIT B
EXHIBIT C