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CO-INVESTOR SUBSCRIPTION AGREEMENT
among
UNIVERSAL COMPRESSION HOLDINGS, INC.,
and
EACH OF THE SIGNATORIES HERETO NAMED ON THE SIGNATURE PAGE HERETO
UNDER THE CAPTION "CO-INVESTORS"
Dated as of February 20, 1998.
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CO-INVESTOR SUBSCRIPTION AGREEMENT
CO-INVESTOR SUBSCRIPTION AGREEMENT dated as of February 20,
1998 (the "Agreement"), by and among Universal Compression Holdings, Inc., a
Delaware corporation ("Holdings"), each of the signatories hereto named on the
signature page hereto under the caption "Co-Investors" (collectively, the
"Co-Investors").
WHEREAS, TW Acquisition Corporation, a Delaware corporation
and a wholly-owned subsidiary of Holdings ("TW"), proposes to acquire (the
"Acquisition") all of the issued and outstanding shares of common stock of
Tidewater Compression Service, Inc., a Texas corporation ("Compression"),
pursuant to a Stock Purchase Agreement (the "Stock Purchase Agreement"), dated
December 18, 1997, by and between TW (which, after acquiring the stock of, and
being merged into, Compression will change its name to Universal Compression
Inc. (the "Company")) and Tidewater Inc., a Delaware corporation;
WHEREAS, in connection with the Acquisition, Holdings is
providing certain equity financing at the closing of the Acquisition (the
"Equity Financing") to the Company to fund a portion of the purchase price of
the Acquisition;
WHEREAS, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners III, L.P., a Delaware limited
partnership, and related funds, accounts and individuals will provide Holdings
with at least 51% of the Equity Financing in return for Common Stock of
Holdings, par value $.01 per share (the "Common Stock") and Series A Preferred
Stock of Holdings, par value $.01 per share (the "Preferred Stock") in an amount
equal to such percentage contribution;
WHEREAS, in connection with the Equity Financing, the
Co-Investors desire to subscribe from Holdings, and Holdings desires to issue
and sell to the Co-Investors, the number of shares of Common Stock and the
number of shares of Preferred Stock, each as set forth opposite the name of each
Co-Investor on Annex I hereto for a purchase price set forth opposite the name
of each Co-Investor on Annex I (the "Purchase Price").
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
"Affiliate" shall, as to Holdings or any other specified
Person, mean (i) any Person directly or indirectly controlling, controlled by or
under direct or indirect common control with Holdings (or other specified
Person), (ii) any Person, directly or indirectly, having Beneficial Ownership of
at least 10% of any class of outstanding capital stock or other evidence of
Beneficial Ownership in Holdings or such other Person; provided, however, that
no holder of
Holdings Securities shall by reason of such holding be an Affiliate
of Holdings or any of its Subsidiaries for purposes of this Agreement and (iii)
any employee of ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. ("CHI") or Affiliates of CHI.
"Business Day" shall mean any day other than a Saturday,
Sunday or any other day on which commercial banks are required or authorized by
law or regulation to be closed in New York, New York.
"Beneficial Ownership" shall be interpreted herein to have the
same meaning as set forth in Section 13(d) of the Exchange Act.
"Closing" shall have the meaning set forth in Section 2.2.
"Closing Date" shall have the meaning set forth in
Section 2.2.
"Common Stock" shall have the meaning set forth in the recital
hereto.
"Company" shall have the meaning set forth in the first
paragraph hereof.
"Holdings Securities" shall have the meaning set forth in
Section 2.1.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and all rules and regulations promulgated thereunder.
"Preferred Stock" shall have the meaning set forth in the
recital hereto.
"Purchase Price" shall have the meaning set forth in the
recital hereto.
"Co-Investor" shall have the meaning set forth in the first
paragraph hereof.
"Registration Rights Agreement" shall mean the Registration
Rights Agreement, dated the date hereof, among Holdings and certain of its
stockholders.
"Securities Act" shall mean the Securities Act of 1933, as
amended and all rules and regulations promulgated thereunder.
"Stockholders Agreement" shall mean the Stockholders
Agreement, dated the date hereof, among Holdings and certain of its
stockholders.
"Stock Purchase Agreement" shall have the meaning set forth
in the recitals hereto.
"Subsidiary" shall mean any Person of which Holdings or other
specified Person now or hereafter shall at the time own directly or indirectly
at least a majority of the outstanding capital stock (or other evidence of
Beneficial Ownership) entitled to vote generally or at least a majority of the
partnership, joint venture or similar interest, or in which Holdings or other
specified Person is a general partner or joint venturer without limited
liability.
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"Voting Agreement" shall mean the Voting Agreement, dated the
date hereof, among Holdings, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners III, L.P. and the
Co-Investors.
2. Purchase
2.1 Purchase. Upon the consummation of the Acquisition and on
the terms and subject to the conditions set forth in this Agreement, the
Co-Investors hereby agree to subscribe and purchase, and Holdings hereby agrees
to issue and sell to the Co-Investors, on the Closing Date, the shares of the
Common Stock and the shares of the Preferred Stock set forth opposite its name
on Annex I for the Purchase Price set forth opposite its name thereon. The
Common Stock and Preferred Stock purchased pursuant to this Agreement are
sometimes collectively referred to herein as the "Holdings Securities."
2.2 The Closing. The closing (the "Closing") of the purchase
of Holdings Securities shall take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Business Day (the
"Closing Date") set forth in a notice to the Co-Investors at least one Business
Day in advance.
At the Closing, (i) Holdings shall issue and deliver to the
Co-Investors, against payment of the Purchase Price therefor, certificates
representing Holdings Securities to be sold by it pursuant to Section 2.1
hereof, (ii) each Co-Investor shall deliver to Holdings against delivery of the
certificate or certificates representing Holdings Securities, by wire transfer
to such account as Holdings shall designate in writing at least two Business
Days prior to the Closing Date, the Purchase Price payable in immediately
available funds, and (iii) each party to this Agreement shall deliver to the
other such other documents, instruments and writings as may be required to be
delivered in accordance with this Agreement or as may be reasonably requested by
such other party.
3. Representations and Warranties of the Co-Investors.
Each Co-Investor represents and warrants to Holdings as
follows:
3.1 Authorization. It has full power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and this
Agreement has been duly authorized, executed and delivered by it and is valid,
binding and enforceable in accordance with its terms, except that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws of general application relating to or affecting
the rights and remedies of creditors.
3.2 Compliance with Laws and Other Instruments. The execution
and delivery of this Agreement and the consummation of the transaction
contemplated hereby will not (a) conflict with (i) any provision of any
governing instrument applicable to such Co-Investor, or (ii) any material
permit, franchise, judgment, decree, statute, rule or regulation applicable to
such Co-Investor or its business or property, or (b) result in any material
breach of any terms or provisions of, or constitute a material default under,
any material contract, agreement or instrument to which such Co-Investor is a
party or by which it is bound.
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3.3 Status and Investment Intent. (a) It is an "accredited
investor" as defined in Rule 501(a) under the Securities Act, and it is
acquiring Holdings Securities hereunder for its own account for investment
purposes only and not with a view to, or with any present intention of,
distribution thereof except as is otherwise provided in this Agreement with
respect to Holdings Securities, provided, that the disposition of its property
shall at all times be within its control. Such Co-Investor understands that it
must bear the economic risk of an investment in Holdings Securities for an
indefinite period of time because, among other reasons, the offering and sale of
Holdings Securities have not been registered under the Securities Act and,
therefore, Holdings Securities cannot be sold unless they are subsequently
registered under the Securities Act or an exemption from such registration is
available. A legend to this effect shall be set forth on the face of each
certificate evidencing Holdings Securities.
(b) It has sufficient knowledge and experience
in financial and business matters so as to be capable of evaluating the merits
and risks of its investment in Holdings Securities and it is capable of bearing
the economic risks of such investment, including a complete loss of its
investment. Such Co-Investor has not relied in connection with this investment
upon any representations, warranties or agreements other than those set forth in
this Agreement and the Stock Purchase Agreement.
3.4 Access to Information. It has been given the opportunity
to examine all documents and to ask questions of, and to receive answers from,
Holdings and its representatives concerning the terms and conditions of the
purchase of Holdings Securities and to obtain any additional information which
Holdings possesses or can reasonably acquire.
4. Representations and Warranties of Holdings.
Holdings represents and warrants to the Co-Investors as
follows:
4.1 Authorization. Holdings has full corporate power and
authority to execute and deliver this Agreement and the Registration Rights
Agreement and to perform its obligations hereunder and thereunder and this
Agreement and the Registration Rights Agreement have been duly authorized,
executed and delivered by Holdings and are valid, binding and enforceable
against Holdings in accordance with their respective terms, except that such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization and similar laws of general application relating to or affecting
the rights and remedies of creditors.
4.2 Capitalization. The authorized capitalization of Holdings
at closing will consist of (i) 1,000,000 shares of Common Stock, of which
325,000 shares are issued and outstanding, and (ii) 5,000,000 shares of
preferred stock, of which 2,000,000 shares have been designated as Series A
Preferred Stock and are issued and outstanding. Annex I attached hereto sets
forth the name of each holder of Common Stock and Preferred Stock and the number
of shares and percentage ownership of Common Stock and Preferred Stock to be
held by each such person after giving effect to (i) the sales thereof hereunder
and (ii) the other sales thereof being effected on the Closing Date. Other than
as set forth on Annex I, there are no other options or other securities
convertible into or exchangeable or exercisable for shares of Common Stock or
Preferred Stock outstanding on the date hereof. Other than the Stockholders
Agreement,
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Holdings has not entered into any contract or agreement granting preemptive
rights with respect to the Common Stock or Preferred Stock.
4.3 Compliance with Laws and Other Instruments. The execution
and delivery of this Agreement and the consummation of the transaction
contemplated hereby will not (a) conflict with (i) any provision of any
governing instrument applicable to Holdings, or (ii) any material permit,
franchise, judgment, decree, statute, rule or regulation applicable to Holdings
or its business or property, or (b) result in any material breach of any terms
or provisions of, or constitute a material default under, any material contract,
agreement or instrument to which Holdings is a party or by which Holdings is
bound.
4.4 Organization and Good Standing. Holdings (a) is duly
organized and validly existing under the laws of the state of Delaware, (b) is
duly qualified as a foreign corporation and authorized to do business in other
jurisdictions in which the nature of its business or property makes such
qualification necessary, except where such failure to qualify would not have a
material adverse effect on the business, operations or condition, financial or
otherwise, of Holdings and its Subsidiaries, taken as a whole, and (c) has the
corporate power to own its properties and to carry on its business as now
conducted and as currently proposed to be conducted.
4.5 Certificate of Incorporation and By-Laws. The copies of
the Certificate of Incorporation and By-Laws of Holdings and all amendments to
each, which are annexed hereto as Exhibit A, are true, correct and complete.
4.6 Valid Issuance. Holdings Securities being issued and sold
hereunder by Holdings have been duly authorized and will, upon consummation of
the transactions contemplated herein, be validly issued, fully-paid and
non-assessable.
4.7 Newly Formed Entity. Holdings was incorporated under the
laws of the State of Delaware on December 1, 1997 and has not, since that date,
entered into any agreements or contracts other than the (i) Stock Purchase
Agreement and all agreements and documents relating to the transactions
contemplated by the Stock Purchase Agreement and the financing relating thereto,
(ii) consulting and management agreements and (iii) this Agreement, the
Management Subscription Agreement, dated as of the date hereof, among Holdings
and certain members of its management, the Voting Trust Agreement, dated as of
the date hereof, among Holdings, certain stockholders of Holdings and ▇▇▇▇ ▇.
▇▇▇▇▇▇, as voting trustee, the Registration Rights Agreement and the Voting
Agreement.
4.8 Securities Laws. The offer and sale of the Holdings
Securities pursuant to this Agreement does not violate, and will not violate,
the Securities Act or any state securities or "blue sky" laws.
4.9 Small Business Matters. The information regarding Holdings
and its affiliates set forth in SBA Form 480, Form 652 and Part A of Form 1031
delivered at the Closing is accurate and complete. Copies of such forms shall
have been completed and executed by the Company and delivered to those
Co-Investors that so request at the Closing.
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5. Closing Conditions.
The obligation of each Co-Investor to purchase any Holdings
Securities pursuant to this Agreement shall be subject to the satisfaction,
prior to or substantially contemporaneously with the making of such purchase at
the Closing, of the following conditions, compliance with which, or the
occurrence of which, may be waived in whole or in part by any Co-Investor in
writing:
5.1 Legal Opinions, etc. The Co-Investors shall have received
from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to Holdings, an opinion dated the date of
the Closing in form and substance reasonably satisfactory to each of the
Co-Investors.
5.2 Representations, Warranties and Conditions; Officers'
Certificate. The representations and warranties of Holdings contained herein
shall be true and correct in all material respects on and as of the date of the
Closing with the same force and effect as though made on and as of the date of
the Closing; and the Co-Investors shall have received on the date of the Closing
a certificate of Holdings to these effects and to the effect that the conditions
specified in this Section 5.2 have been satisfied and Holdings has performed and
complied with all agreements required by this Agreement to be performed or
complied with by it prior to or at the Closing.
5.3 Taxes, Penalties, etc. The purchase of and payment for
Holdings Securities shall not subject any Co-Investor to any penalty or tax
liability and shall not be prohibited by law.
5.4 No Change in Law; Litigation, etc. No legal requirement
shall have been enacted or become effective, nor shall any legislation have been
introduced for passage to any legislature, nor shall have any investigation by
any governmental authority or administrative body been commenced, nor shall any
decision of any court of competent jurisdiction have been rendered, nor shall
any litigation or other action or proceeding have been commenced, which in any
Co-Investor's reasonable judgment could materially and adversely affect the
transaction contemplated by this Agreement.
5.5 General. All instruments and legal and corporate
proceedings in connection with the transaction contemplated by this Agreement
shall be in form and substance reasonably satisfactory to the Co-Investors, and
the Co-Investors shall have received counterpart, original, or certified or
other copies, of all documents, including records of corporate proceedings and
opinions of counsel, that they may have requested in connection therewith.
5.6 SBA Documents and Information. Holdings shall have
executed and delivered to each Co-Investor requesting the same a Size Status
Declaration on SBA Form 480 and an Assurance of Compliance on SBA Form 652 and
information necessary for the preparation of a Portfolio Financing Report on SBA
Form 1031.
5.7 Consummation of the Acquisition. The Acquisition and all
related transactions shall be consummated on a substantially contemporaneous
basis with the Closing on
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the terms set forth in the Stock Purchase Agreement and the Company shall be a
wholly-owned subsidiary of Holdings.
6. Miscellaneous.
6.1 Assignability; Binding Effect. Except as otherwise
provided in this Section (and except for any transfer by Mellon Bank, N.A. as
trustee for the ▇▇▇▇ Atlantic Master Trust to any successor trustee or nominee
for, or successor by reorganization of, such Trust), no right under this
Agreement shall be assignable and any attempted assignment in violation of this
provision shall be void. Holdings shall have the right to assign its rights and
obligations hereunder to any successor entity (including any entity acquiring
substantially all of the assets of Holdings), whereupon references herein to
Holdings shall be deemed to be to such successor. This Agreement, and the rights
and obligations of the parties hereunder, shall be binding upon and inure to the
benefit of any and all successors, permitted assigns, personal representatives
and all other legal representatives, in whatsoever capacity, by operation of law
or otherwise, of the parties hereto, in each case with the same force and effect
as if the foregoing persons were named herein as parties hereto.
6.2 Notices. Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, telecopied with confirmed receipt, sent by certified, registered, or
express mail, postage prepaid, or sent by a national next-day delivery service
to the parties at the following addresses or at such other addresses as shall be
specified by the parties by like notice, and shall be deemed given when so
delivered personally or telecopied, or if mailed, 5 days after the date of
mailing, or, if by national next-day delivery service, on the day after delivery
to such service as follows:
(a) If to Holdings, to it at the following address:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
(b) If to the Co-Investors, to them at their
respective addresses set forth next to their names on
Annex II hereto;
or at such other address or addresses as either party hereto shall have
specified by notice in writing to the other party (provided, that such notice of
change of address shall be deemed to have been duly given only when actually
received).
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6.3 Applicable Law; Consents. This Agreement and the validity
and performance of the terms hereof shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law or choice of law. The parties hereto hereby agree that all
actions or proceedings arising directly or indirectly from or in connection with
this Agreement shall be litigated only in the Supreme Court of the State of New
York or the United States District Court for the Southern District of New York
located in New York County, New York. To the extent permitted by applicable law,
the parties hereto consent to the jurisdiction and venue of the foregoing courts
and consent that any process or notice of motion or other application to either
of said courts or a judge thereof may be served inside or outside the State of
New York or the Southern District of New York by registered mail, return receipt
requested, directed to such party at its address set forth in this Agreement
(and service so made shall be deemed complete five days after the same has been
posted as aforesaid) or by personal service or in such other manner as may be
permissible under the rules of said courts.
6.4 Entire Agreement; Amendments and Waivers. This Agreement
and the Stock Purchase Agreement sets forth the entire understanding of the
parties with respect to the subject matter hereof. The failure of any party to
seek redress for the violation of or to insist upon the strict performance of
any term of this Agreement shall not constitute a waiver of such term and such
party shall be entitled to enforce such term without regard to such forbearance.
This Agreement may be amended only by the written consent of each party hereto,
and each party hereto may take any action herein prohibited or omit to take
action herein required to be performed by it, and any breach of or compliance
with any covenant, agreement, warranty or representation may be waived only by
the written waiver of the party against whom such action or inaction may
negatively affect, but, in any case, such consent or waiver shall only be
effective in the specific instance and for the specific purpose for which given.
6.5 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
6.6 Severability. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction or any foreign federal, state, county or local government
or any other governmental, regulatory or administrative agency or authority to
be invalid, void, unenforceable or against public policy for any reason, the
remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.
6.7 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument, and it shall not be necessary in
making proof of this Agreement to produce or account for more than one such
counterpart.
6.8 Specific Performance. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, the
non-breaching party would be irreparably harmed and could not be made whole by
monetary damages. It is accordingly agreed that the parties hereto shall and do
hereby waive the defense in any action for specific performance that a
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remedy at law would be adequate and that the parties hereto, in addition to any
other remedy to which they may be entitled at law or in equity, shall be
entitled to compel specific performance of this Agreement in any action
instituted in the Supreme Court of the State of New York or the United States
District Court for the Southern District of New York, or, in the event such
courts shall not have jurisdiction of such action, in any court of the United
States or any state thereof having subject matter jurisdiction of such action.
6.9 Survival of Covenants. All covenants, agreements,
representations and warranties made herein or in any other document referred to
herein or delivered to a party pursuant hereto or in connection herewith shall
survive the execution and delivery to such party of this Agreement and of
Holdings Securities.
6.10 Brokers Fees, etc. Each party hereto represents and
warrants to each other party that no broker's, finder's or placement fee or
commission will be payable to any Person alleged to have been retained by such
representing and warranting party with respect to the transaction contemplated
by this Agreement. Each party hereto hereby indemnifies each other party against
and agrees that it will hold each other party and each of such party's
Affiliates (and each of the trustee, employees and other fiduciaries or agents
of such party) harmless from any claim, demand or liability for any broker's,
finder's or placement fee or commission alleged to have been incurred by such
indemnifying party, including without limitation reasonable attorneys' fees.
6.11 Expenses. Whether or not the transaction contemplated by
this Agreement shall be consummated, Holdings agrees to pay, on demand, all
expenses in connection with this transaction and operations hereunder, including
without limitation (i) payment by wire transfer at the closing hereunder of the
reasonable fees and expenses of special counsel to each Co-Investor (upon
reasonable documentation thereof), arising in connection with the negotiation
and execution of this Agreement, the Stockholders Agreement, the Registration
Rights Agreement and the Voting Agreement and the consummation of the
transactions contemplated hereby and thereby, (ii) the out-of-pocket expenses
incurred by each Co-Investor (upon reasonable documentation thereof) in
connection with the investigation and consummation of such transactions, (iii)
any taxes, including recording or filing fees and transfer and documentary stamp
and similar taxes, payable in respect of execution and delivery of this
Agreement and the other agreements mentioned in clause (i), (iv) all expenses
(including enforcement, reasonable attorneys' fees and expenses) incurred in
respect of the exercise or performance, or the preservation or enforcement, of
any right granted to the Co-Investors, and the consideration of any legal
questions relevant thereto and (v) all expenses (including reasonable attorneys'
fees and expenses) in connection with any amendments or waivers (whether or not
the same become effective) of this Agreement or any of such other agreements
mentioned in clause (ii).
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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
UNIVERSAL COMPRESSION HOLDINGS INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
CO-INVESTORS:
MELLON BANK, N.A., AS TRUSTEE
FOR THE ▇▇▇▇ ATLANTIC MASTER
TRUST, AS DIRECTED BY
▇▇▇▇ ATLANTIC CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title Authorized Signature
FIRST UNION CAPITAL PARTNERS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
BT CAPITAL PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Managing Director
WILMINGTON TRUST, AS TRUSTEE OF
DU PONT PENSION TRUST
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ UNIVERSITY THIRD CENTURY FUND
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice Chairman
ANNEX I
CAPITALIZATION CHART
ANNEX II
Co-Investor Address
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Mellon Bank, N.A., as Trustee for the ▇▇▇▇ Atlantic One Mellon Bank Center
Master Trust Room 3346
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
with a copy to:
▇▇▇▇ Atlantic Management Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: A. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
First Union Capital Partners, Inc. One First Union Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
BT Capital Partners, Inc. Mail Stop 2255
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Wilmington Trust, as Trustee of Du Pont Pension Trust Du Pont Pension Fund Investments
Delaware Corporate Center
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ University Third Century Fund ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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EXHIBIT A
CERTIFICATE OF INCORPORATION
AND
BY-LAWS