ORION MARINE GROUP, INC. AMENDED AND RESTATED REDEMPTION AGREEMENT
Exhibit 10.3
ORION MARINE GROUP, INC.
AMENDED AND RESTATED REDEMPTION AGREEMENT
This Amended and Restated Redemption Agreement (this “Amendment”), dated as of May 7, 2007,
(i) amends and restates in its entirety the Redemption Agreement (the “Agreement”), dated as of
March 27, 2007 by and among Orion Marine Group, Inc. (formerly Hunter Acquisition Corp.), a
Delaware corporation (“Company”), and the holders of the Company’s capital stock (the “Stock”) set
forth on Exhibit A hereto (individually, a “Seller”, and together, the “Sellers”), and (ii)
is entered into by and among the Company and the Sellers holding at least a majority of the Shares.
RECITALS
WHEREAS, each of the Sellers owns the number of shares of Class A Stock, par value $0.01 per
share (“Class A Stock”), and Class B Stock, par value $0.01 per share (“Class B Stock” and,
together with the Class A Stock owned by the Stockholders, the “Shares”) in each case as set forth
on Exhibit A;
WHEREAS, the Company is proposing to sell equity securities to new investors (the
“Financing”) pursuant to a Purchase/Placement Agreement to be entered into by and between
the Company and Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc. (“FBR;” and such agreement being the “FBR
Agreement”), and the Company expects to close such Financing within ninety (90) days after the
execution of the Agreement;
WHEREAS, upon the terms and conditions set forth herein, each Seller desires to tender, and
Company desires to redeem (the “Redemption”), all of such Seller’s Shares at the Redemption Price
(as defined below);
WHEREAS, the Company and the Sellers also desire to terminate the Securities Purchase and
Exchange Agreement, dated as of October 14, 2004 (the “Purchase Agreement”), among the Company and
the Sellers, the Stockholders’ Agreement, dated as of October 14, 2004 (as amended, the
“Stockholders’ Agreement”), among the Company and the Sellers, the Registration Rights Agreement,
dated of October 14, 2004 (the “Registration Rights Agreement”), among the Company and the Sellers,
the letter regarding management rights, dated as of October 14, 2004 (the “Management Rights
Letter”), from the Company to Austin Ventures VII, L.P. and Austin Ventures VIII, L.P., and the
Management Agreement, dated as of October 14, 2004 (the “Management Agreement” and, together with
the Purchase Agreement, the Stockholders’ Agreement, the Registration Rights Agreement and the
Management Rights Letter, the “Terminated Agreements”), between the Company and Capture 2004, L.P.,
in each case on the terms, subject to the conditions and with such exceptions set forth below; and
WHEREAS, as a result of developments in the Financing, the undersigned Sellers desire to amend
and restate the Agreement in its entirety, which amendment and restatement will be binding on all
Sellers upon execution of this Amendment by the Sellers holding at least a majority of the Shares
pursuant to Section 7 of the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
hereinafter set forth, the parties hereto agree as follows:
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AGREEMENT
1. Closings; Closing Dates. Subject to the terms and conditions herein, the initial
closing of the redemption (the “Initial Closing”) shall occur promptly (and in any event within
three business days) following the closing of the Financing or such other date as agreed to between
the Company and the holders of a majority in voting power of the Stock (the “Initial Closing
Date”). Thereafter, subject to the terms and conditions herein, subsequent closings (each, a
“Subsequent Closing” and, together with the Initial Closing, each a “Closing”) shall occur promptly
(and in any event within three business days) after the closing of each exercise by FBR of its
option to purchase additional shares pursuant to the terms of the FBR Agreement (each, a
“Subsequent Closing Date” and, together with the Initial Closing Date, each a “Closing Date”).
1.1 Effective upon the Initial Closing, except as otherwise set forth in the Employment
Agreement dated as of March 27, 2007 between the Company and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the “Employment
Agreement”), the Company shall pay on the Initial Closing Date the respective Redemption Price, by
check or wire transfer, to each Seller, and the Attorney (as defined below) shall surrender and
deliver to the Company for cancellation the stock certificates representing (a) all Class A Stock
and (b) a number of shares of Class B Stock equal to (i) the net proceeds to the Company from the
closing of Financing (after purchaser’s discount, placement fees and all other expenses related to
the Financing) divided by (ii) the Redemption Price for the Class B Stock, such redeemed Class B
Stock to be allocated among the Sellers in accordance with the number of shares of Class B Stock
held by them immediately prior to such Initial Closing; provided, that for purposes of the
Employment Agreement, the Class B Stock to be redeemed from ▇▇. ▇▇▇▇▇▇▇ shall be allocated first,
to the outstanding shares of Class B Stock held by ▇▇. ▇▇▇▇▇▇▇ on the date hereof (other than the
Unvested Shares, as defined in the Employment Agreement), second, to the Unvested Shares and third
to any shares of Class B Stock purchased by ▇▇. ▇▇▇▇▇▇▇ pursuant to options outstanding on the date
hereof. The “Redemption Price” shall mean (A) with respect to each Share that is Class A Stock, an
amount equal to $1,000 (as adjusted for any stock splits, stock dividends, recapitalizations,
combinations or similar transactions with respect to the Class A Stock after the date hereof and on
or prior to the Closing Date) plus all accrued or declared but unpaid dividends on such share of
Class A Stock to and including the Closing Date, and (B) with respect to each Share that is Class B
Stock, an amount equal to the net proceeds per share (after purchaser’s discount and placement
fees, but before other expenses) to the Company in the Financing.
1.2 Effective upon each Subsequent Closing, except as otherwise set forth in the Employment
Agreement, the Company shall pay on such Subsequent Closing Date the respective Redemption Price,
by check or wire transfer, to each Seller, and the Attorney (as defined below) shall surrender and
deliver to the Company for cancellation the stock certificates representing a number of shares of
Class B Stock (not greater than the aggregate number of Shares that are Class B Stock outstanding
immediately prior to such Subsequent Closing Date) equal to (i) the net proceeds to the Company
from the exercise by FBR of its option to purchase additional shares (after purchaser’s discount,
placement fees and all other expenses related thereto) divided by (ii) the Redemption Price for the
Class B Stock, such redeemed Class B Stock to be allocated among the Sellers in accordance with the
number of shares of Class B Stock held by them immediately prior to such Subsequent Closing;
provided, that for purposes of the Employment Agreement, the Class B Stock to be redeemed
from ▇▇. ▇▇▇▇▇▇▇ shall be allocated first, to the outstanding shares of Class B Stock held by ▇▇.
▇▇▇▇▇▇▇ on the date hereof (other than the Unvested Shares, as defined in the Employment
Agreement), second, to the Unvested Shares and third to any shares of Class B Stock purchased by
▇▇. ▇▇▇▇▇▇▇ pursuant to options outstanding on the date hereof.
1.3 At each Closing, for value received, each of the Sellers sells, assigns and transfers unto
the Company the Shares redeemed at such Closing set forth opposite such Seller’s name on
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Exhibit A standing in such Seller’s name on the books of the Company and does hereby
irrevocably constitute and appoint the Secretary of the Company agent to cancel said Shares on the
books of the Company with full power of substitution in the premises.
2. Surrender of Certificates; Power of Attorney. Upon execution of the Agreement,
each Seller shall deliver to the Company, as escrow agent, all stock certificates representing the
Shares for delivery to the Company and cancellation upon Closing. To the extent such Shares are
uncertificated, each Seller hereby authorizes the Company to cancel such Seller’s Shares on the
books of the Company on the Closing Date. The deposited certificates shall remain in
escrow until the earlier of the termination of this Agreement or the Closing. Upon termination of
this Agreement, the Company shall promptly deliver the certificates representing any unredeemed
Shares to each applicable Seller. At each Closing the escrowed certificates for the Shares
redeemed at such Closing shall be cancelled by the Company concurrently with the payment to Sellers
of the Redemption Price for such Shares, and the Sellers shall cease to have any further rights or
claims with respect to such redeemed Shares. To insure the performance of each Seller with the
agreements set forth in this Agreement, each Seller hereby appoints the Secretary of the Company or
its designee (the “Attorney”), as his, her, or its true and lawful attorney in fact, with full
power of substitution and resubstitution, to transfer and deliver to the Company all Shares and
certificates representing Shares, subject to the provisions of this Agreement, for cancellation at
each Closing concurrently with the payment to Sellers of the Redemption Price for such Shares. The
powers granted by each Seller pursuant to the preceding sentence are coupled with an interest and
are given to secure the performance of such Seller’s commitments under this Agreement. Such powers
shall be irrevocable for the term of this Agreement and shall survive the death, incompetency,
disability, dissolution or winding up of such Seller. Except as provided above, no Seller shall
grant a proxy or power of attorney with respect to the transfer, voting or other control over, or
create any right to vote or dispose of any of the Shares without the prior written consent of the
Company. Until the termination of this Agreement, no Seller shall transfer any Shares or any
interest in any Shares, except pursuant to the terms of this Agreement.
3. Termination of the Terminated Agreements. Immediately prior to, and conditioned
upon, the closing of the Financing, each of the Terminated Agreements shall be terminated in their
entirety and of no further force or effect; provided, that Sections 8.14 and
9.15 of the Purchase Agreement, Section 9 of the Stockholders’ Agreement, the
second to last paragraph of the Management Rights Letter and Section 4 of the Management
Agreement shall each survive such termination.
4. Termination of the Agreement. The Agreement shall terminate upon the expiration of
FBR’s option under the FBR Agreement to purchase additional stock from the Company. Sections
3, 5, and 7 through 17 shall survive such termination.
5. Representations and Warranties.
5.1 Seller Representations and Warranties to Company. Each Seller, severally and not
jointly, hereby represents and warrants to the Company on the date hereof and on each Closing Date
as follows:
5.1.1 Power and Authority. The Seller has the power and authority to execute and
deliver this Agreement and to perform such Seller’s obligations hereunder and to consummate the
transaction contemplated hereby. This Agreement has been duly executed and delivered by the Seller
and, assuming the due authorization, execution, and delivery by the Company, constitutes the legal,
valid and binding obligation of the Seller enforceable against the Seller in accordance with its
terms (subject to bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally or by principles governing the availability of equitable
remedies).
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5.1.2 Ownership. The Seller is the owner, beneficially and of record of, and has good
and marketable title to, the Shares, free and clear of any liens, charges, options, pledges,
encumbrances, conditions or claims. The Seller has not pledged, assigned or otherwise transferred
the Shares. Other than Seller’s title to the Shares, the Seller does not hold (beneficially or
otherwise) or have any other rights or interest in or to any capital stock of the Company or its
subsidiaries, including (without limitation) any options, warrants, subscriptions, rights
(including conversion or preemptive rights), obligations or agreements (contingent or otherwise)
for the purchase or acquisition of any shares of capital stock of the Company or any of its
subsidiaries.
5.1.3 Noncontravention. Neither the execution and delivery of this Agreement by the
Seller nor the performance by the Seller of such Seller’s or obligations contemplated by this
Agreement will: (i) require on the part of the Seller any filing with, or any permit,
authorization, consent or approval of, any court, arbitrational tribunal, administrative agency or
commission or other governmental or regulatory authority or agency or (ii) result in the imposition
of any encumbrance upon, or Security Interest (as defined below) on, the Shares. “Security
Interest” means any mortgage, pledge, security interest, encumbrance, charge or other lien (whether
arising by contract or by operation of law), other than (i) mechanic’s, materialmen’s, and similar
liens, (ii) liens arising under worker’s compensation, unemployment insurance, social security,
retirement, and similar legislation, (iii) liens on goods in transit incurred pursuant to
documentary letters of credit, and (iv) statutory liens with respect to current taxes not yet due
and payable, and in each case arising in the ordinary course of business consistent with past
practice, including with respect to frequency and amount.
5.1.4 Brokers. The Seller has not dealt with a broker or finder in connection with
the transaction contemplated in this Agreement and no broker or other person is entitled to any
commission or finder’s fee in connection with the Redemption.
5.1.5 Information. The Seller has received from the Company all information that such
Seller has requested or deems necessary in connection with Seller’s decision to enter into this
Agreement and perform Seller’s obligations hereunder.
5.2 Company Representations and Warranties to Sellers. The Company represents and
warrants to each Seller on the date hereof and on each Closing Date as follows:
5.2.1 Organization. The Company is duly organized, validly existing and in good
standing in the State of Delaware.
5.2.2 Authority. The Company has the requisite legal power, authority and capacity to
execute, deliver and perform this Agreement. All action of the Company’s Board of Directors and
its stockholders necessary to authorize the transactions contemplated hereby have been duly and
validly taken and all requisite consents of third parties have been obtained. The execution,
delivery and performance of this Agreement and the consummation of the transactions contemplated
hereby, including the Redemption, payment of the aggregate Redemption Price, (i) have not and will
not conflict with or result in a breach of the provisions of its Certificate of Incorporation, as
amended, or its Bylaws, as amended, (ii) have not resulted, and will not (with or without the lapse
of time or the giving of notice or both) result, in any default or breach or give rise to any right
of termination, acceleration or cancellation under any of the terms, conditions, or provisions of
any note, deed of trust, bond, mortgage, indenture, instrument, agreement, license or permit to
which it is a party or by which it or any of its assets may be bound or result in the imposition of
any encumbrance upon, or Security Interest on, any of the Corporation’s assets, (iii) have not
violated, and will not violate, any rule, regulation, judgment, decree or order by which it may be
bound; or (iv) have not, and will not, require on the part of the Corporation any
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filing with, or any permit, authorization, consent or approval of, any court, arbitrational
tribunal, administrative agency or commission or other governmental or regulatory authority or
agency.
5.2.3 Validity. This Agreement has been duly and validly executed and delivered by
the Company and constitutes a valid and binding obligation enforceable in accordance with its terms
(subject to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement
of creditors’ rights generally or by principles governing the availability of equitable remedies).
5.2.4 Offering Memorandum. Capitalized terms not defined herein have the meanings
ascribed to such terms in the FBR Agreement.
(a) The Preliminary Memorandum did not, as of its date, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; and the Final
Memorandum did not, as of its date, at the Closing Time and each Extended Closing Time (if any) and
each Secondary Closing Time (if any), contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that this
representation and warranty does not apply to any statement in or omission from the Preliminary
Memorandum or Final Memorandum made in reliance upon and in conformity with information furnished
to the Company in writing by FBR or any Seller expressly for use therein; and
(b) The Preliminary Memorandum included, as of its date, and the Final Memorandum include, as
of its date, at the Closing Time, Extended Closing Time (if any) and at each Secondary Closing Time
(if any), the information required by Rule 144A, Regulation S and Regulation D;
5.2.5 Solvency. After giving effect to the transactions contemplated by this
Agreement, including the payment of the aggregate Redemption Price: (i) the Company’s fair value of
its property will be greater than its total amount of liabilities, including, without limitation,
its contingent liabilities; (ii) the present fair salable value of the Company’s assets will be
greater than the amount that will be required for the Company to pay the probable liability on its
debts as they become absolute and matured; (iii) the Company is not engaged in business or a
transaction, and will not be engaged in business or a transaction, for which the Company’s property
would constitute an unreasonably small capital.
5.2.6 Surplus. The redemption complies with the Delaware General Corporation Laws and
the Company’s payment of the Redemption Price shall not cause an impairment to the Company’s
capital. At each Closing Date, the Company shall have sufficient surplus (as determined in
accordance with Delaware General Corporation Laws) or net profits for 2006 and/or 2007 to pay the
Redemption Price in full.
5.3 Seller Representations and Warranties to other Sellers. Capitalized terms not
defined herein have the meanings ascribed to such terms in the FBR Agreement. Each Seller,
severally and not jointly, hereby represents and warrants to each other Seller, on the date hereof
and on each Closing Date, that to the knowledge of Seller (i) the Preliminary Memorandum did not,
as of its date, contain an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (ii) the Final Memorandum did not, as of its date, at the
Closing Time and each Extended Closing Time (if any) and each Secondary Closing Time (if any),
contain an untrue statement of a material fact or omit
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to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty does not apply to any statement in or omission from the Preliminary
Memorandum or Final Memorandum made in reliance upon and in conformity with information furnished
to the Company in writing by FBR or any other Seller expressly for use therein.
6. Conditions to Closing.
6.1 Sellers’ Conditions to Closing. The obligation of the Sellers to close the
Redemption is subject to the fulfillment on or prior to each Closing Date, to the satisfaction of
or waiver by the Sellers holding a majority in voting power of the Shares, of each of the following
conditions:
6.1.1 Representations and Warranties. Each representation and warranty made by the
Company in Section 5 above shall be true and correct on in all material respects on the
Closing Date with the same force and effect as if such representation and warranty had been made on
and as of the Closing Date.
6.1.2 Performance. All covenants, agreements and conditions contained in this
Agreement to be performed or complied with by the Company on or prior to the Closing Date shall
have been performed or complied with by the Company in all material respects.
6.1.3 Consents and Waivers. The Company shall have obtained all consents and waivers
necessary to execute this Agreement and any other agreements or instruments contemplated herein and
to carry out the transactions contemplated hereby and thereby.
6.1.4 Authorizations. All authorizations, approvals or permits, if any, of any
governmental authority or regulatory body that are required in connection with the lawful
Redemption pursuant to this Agreement shall have been duly obtained and shall be effective on and
as of the Closing.
6.1.5 Compliance Certificate. The Company shall have delivered to the Sellers a
certificate signed by the President of the Company, dated the Closing Date, certifying to the
fulfillment of the conditions specified above.
6.2 Company’s Conditions to Closing. The obligation of the Company to close the
Redemption is subject to the fulfillment on or prior to each Closing Date, to the satisfaction of
or waiver by the Company, of each of the following conditions:
6.2.1 Representations and Warranties. Each representation and warranty made by the
Sellers in Section 5 above shall be true and correct on in all material respects on the
Closing Date with the same force and effect as if such representation and warranty had been made on
and as of the Closing Date.
6.2.2 Performance. All covenants, agreements and conditions contained in this
Agreement to be performed or complied with by the Sellers on or prior to the Closing Date shall
have been performed or complied with by the Sellers in all material respects.
6.2.3 Financing Complete. The Company shall have closed the Financing or the
additional sale of shares to FBR, as applicable, and received the proceeds therefrom.
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6.2.4 Consents and Waivers. The Company shall have obtained all consents and waivers
necessary to execute this Agreement and any other agreements or instruments contemplated herein and
to carry out the transactions contemplated hereby and thereby.
6.2.5 Authorizations. All authorizations, approvals or permits, if any, of any
governmental authority or regulatory body that are required in connection with the lawful
Redemption pursuant to this Agreement shall have been duly obtained and shall be effective on and
as of the Closing.
7. Form W-9. Each Seller has duly completed and executed the attached Substitute Form
W-9.
8. Entire Agreement. This Agreement constitutes the entire agreement between the
parties with respect to its subject matter and may not be modified or amended, except by written
agreement of the Company and the Sellers holding at least a majority of the Shares. Any amendment,
waiver, discharge or termination not in compliance with this Section 8 shall be void.
9. General Release of Claims. Effective upon each Closing, each Seller, on behalf of
itself and its subsidiaries, affiliates, parents, officers, directors, shareholders, employees,
agents, attorneys, successors and assigns, both present and former, if any and in each case other
than the Company and its subsidiaries (collectively, the “Releasing Parties”), irrevocably and
unconditionally release, acquit, covenant not to ▇▇▇ (directly or derivatively) and forever hold
harmless the other Releasing Parties of and from any and all manner of action and actions, cause
and causes of action, suits, debts, controversies, damages, judgments, executions, losses, claims,
demands and attorneys’ fees and expenses whatsoever, (whether asserted or unasserted, known or
unknown, foreseeable or unforeseeable, and whether accrued or that may accrue in the future) in
contract, tort, law or in equity which the Releasing Parties ever had, now have or may in the
future have against the other Releasing Parties based upon, arising out of, relating to, by reason
of (i) the Financing, (ii) the transactions contemplated by this Agreement including without
limitation the Redemption and (iii) any acts or omissions of the Company or its affiliates in
connection with (i) and (ii) above; provided however, that the release, acquittal and covenants not
to ▇▇▇ (directly or derivatively) and forever hold harmless in this Section 9 shall not
apply to claims based upon, arising out of, relating to, by reason of Section 5.3.
10. Non-waiver. No delay or failure by any party to exercise any right under this
Agreement, and no partial or single exercise of that right, shall constitute a waiver of that or
any other right, unless otherwise expressly provided herein.
11. Independent Counsel. Each party acknowledges and agrees that such party has been
represented by and consulted with, or has had reasonable opportunity to be represented by and
consulted with, independent counsel of its own choosing throughout all negotiations that preceded
the execution and delivery of this Agreement.
12. Headings. Headings in this Agreement are for convenience only and shall not be
used to interpret or construe its provisions.
13. Further Assurances. Each party to this Agreement hereby covenants and agrees,
without the necessity of any further consideration, to execute and deliver any and all such further
documents and take any and all such other actions as may be necessary or appropriate to carry out
the intent and purposes of this Agreement and to consummate the transactions contemplated herein.
14. Governing Law. This Agreement shall be construed in accordance with and governed
by the laws of the State of Delaware.
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15. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one and the same
instrument.
16. Binding Effect. Upon the execution hereof by the Company and the Sellers holding
at least a majority of the Shares, the provisions of this Amendment and the Agreement shall be
binding upon and inure to the benefit of each of the Company and each Seller and their respective
successors and assigns.
17. Facsimile Signatures. This Agreement may be executed and transmitted by
facsimile, which signature shall be binding upon the parties as if they were original signatures.
Signature page follows.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first written above.
| COMPANY: | ||||||
| ORION MARINE GROUP, INC. | ||||||
| By: | /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||||
| Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President | ||||||
| SELLERS: | ||||||
| AUSTIN VENTURES VIII, L.P. | ||||||
| By: AV Partners VIII, LP, its General Partner | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner | ||||||
| AUSTIN VENTURES VII, L.P. | ||||||
| By: AV Partners VII, LP, its General Partner | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Partner | ||||||
| CAPTURE 2004, L.P. | ||||||
| By: JSB 2004, Inc., its general partner | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director | ||||||
Signature page to Amended and Restated Redemption Agreement
| 2004 ORION, LLP | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director | ||||||
| ORION INCENTIVE EQUITY, LP | ||||||
| By: Capture 2004, L.P., its general partner | ||||||
| By: JSB 2004, Inc., its general partner | ||||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||||
| ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director | ||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||||||
Signature page to Amended and Restated Redemption Agreement
EXHIBIT A
Class A Stock
| Date | Holder | Certificate No. | Number of Shares | |||||||
10/14/04
|
2004 Orion LLP | 01 | 1,000 | |||||||
1014/04
|
Austin Ventures VII, L.P. | 02 | 11,437.5 | |||||||
10/14/04
|
Austin Ventures VIII, L.P. | 03 | 19,062.5 | |||||||
10/14/04
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | 04 | 3,500 | |||||||
Class B Stock
| Date | Holder | Certificate No. | Number of Shares | |||||||
10/14/04
|
2004 Orion LLP | 01 | 819,000 | |||||||
10/14/04
|
Austin Ventures VII, L.P. | 02 | 9,380,000 | |||||||
10/14/04
|
Austin Ventures VIII, L.P. | 03 | 15,631,000 | |||||||
10/14/04
|
Orion Incentive Equity, L.P. | 04 | 2,520,000 | |||||||
10/14/04
|
Capture 2004, L.P. | 05 | 3,150,000 | |||||||
10/14/04
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | 06 | 3,500,000 | |||||||
5/3/05
|
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | 07 | 750,000 | |||||||
| ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | 50,0001 | |||||||||
| 1 | Pursuant to the Employment Agreement of even date herewith between the Company and ▇▇. ▇▇▇▇▇▇▇, options to acquire 50,000 shares of Class B Stock will vest on March 31, 2007. Subject to the vesting of such options and ▇▇. ▇▇▇▇▇▇▇’▇ exercise of such options and payment of the exercise price therefore on or prior to the Closing Date, the 50,000 shares issuable upon exercise of such options will be subject to redemption under this Agreement. |