EXHIBIT (d)(5)
SUBSCRIPTION AND CONTRIBUTION AGREEMENT
THIS SUBSCRIPTION AND CONTRIBUTION AGREEMENT (this "Agreement") is
entered into as of October 24, 2000, by and among KC Holding Corporation, a
Delaware corporation (the "Company"), ValueAct Capital Partners, L.P. ("VAC" or
the "Cash Investor"), and Xxxx X. Xxxxxx (the "Exchange Investor" and together
with the Cash Investor, the "Investors"). Each capitalized term used and not
otherwise defined herein has the meaning given to such term in Section 9 below.
Subject to the terms and conditions set forth herein, the parties
hereto desire to consummate the following integrated plan of corporate
structuring: (i) the Company desires to receive from the Cash Investor, and the
Cash Investor desires to deliver to the Company, the amount of cash
consideration described herein in exchange for the Company's issuance to the
Cash Investor of that certain number of Common Shares (as defined herein)
described herein and (ii) the Company desires to receive from the Exchange
Investor, and the Exchange Investor desires to contribute to the Company, that
number of shares of Target Common Stock (as defined herein) described herein in
exchange for the Company's issuance to the Exchange Investor of that certain
number of Common Shares described herein.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
and understandings herein contained, the parties hereto agree as follows:
1. Authorization of Capital Stock. The Company's authorized capital
stock consists of (i) 5,000,000 shares of common stock, par value $0.01 per
share (the "Common Shares"), and (ii) 5,000 shares of undesignated preferred
stock (the "Preferred Shares").
2. Purchase And Sale of Common Shares.
(a) Subject to the terms and conditions hereof, on the Sale Closing
Date (as defined herein) the Company shall issue to the Cash Investor, and the
Cash Investor shall purchase from the Company, 865,214 Common Shares for the
aggregate cash consideration of $21,630,350. The per share purchase price of
such Common Shares is $25.00.
(b) Subject to the terms and conditions hereof, on the Exchange
Closing Date (as defined herein) the Company shall issue to the Exchange
Investor, and the Exchange Investor shall purchase from the Company, 472,803
Common Shares (the "Exchange Shares") in exchange for an aggregate of 11,365,458
shares of common stock, par value $.000l per share ("Target Common Stock"), of
KENETECH Corporation, a Delaware corporation ("Target"). The value per share of
such shares of Target Common Stock transferred by the Exchange Investor to the
Company is $1.04.
(c) Against the delivery by each Investor of the consideration set
forth herein or opposite such Investor's name on Schedule I, as the case may be,
the Company shall effect the issuances and sales referred to in Sections 2(a)
and 2(b) above by executing and delivering to each Investor duly executed
certificates evidencing the Common Shares subscribed to by each such Investor,
each certificate duly registered in such Investor's name. Any cash payment to
be made by the Cash Investor shall be made by wire transfer.
(d) The closing of the sale of the Common Shares to the Cash Investor
(the "Closing") shall take place one business day after the date on which KC
Merger Corp., a Delaware corporation ("Merger Sub"), a wholly owned subsidiary
of the Company, shall have accepted for payment the shares of Target Common
Stock tendered in the Offer (as defined in that certain Agreement and Plan of
Merger, entered into as of the date hereof, by and among the Company, Merger Sub
and Target (the "Merger Agreement")). The closing of the exchange by the
Exchange Investor of Target Common Stock for Exchange Shares (the "Exchange
Closing") shall take place at such time on date mutually agreed upon by the
Company and the Exchange Investor but in no event later than December 28, 2000.
The Company will immediately contribute to Merger Sub: (i) the proceeds from
the sale of the Common Shares to the Cash Investor, who shall immediately
deposit such funds with the depository in order to fund the purchase of the
shares of Target Common Stock pursuant to the Offer and (ii) the shares of
Target Common Stock contributed to the Company by the Exchange Investor. The
date of the Sale Closing is herein referred to as the "Sale Closing Date," the
date of the Exchange Closing is herein referred to as the "Exchange Closing
Date" and each are collectively referred to as the "Closing Dates."
(e) On the applicable Closing Dates, the Company shall deliver to
each Investor such officers' certificates, good standing certificates and
instruments as shall be reasonably requested relating to the transactions
contemplated hereby.
(f) In order to facilitate the contribution of the Exchange Shares by
the Exchange Investor, the Exchange Investor shall deliver within ten business
days of the date hereof one or more certificates representing all of the
Exchange Shares to be contributed by the Exchange Investor to the Company,
together with stock powers or other instruments duly endorsed or otherwise
sufficient for transfer (the "Exchange Instruments"). The Company shall hold the
Exchange Instruments in escrow pending the Exchange Closing. On the Exchange
Closing Date, the Company is authorized to present the Exchange Instruments to
the transfer agent for Target and instruct the transfer agent to register the
Exchange Shares in the name of the Company or its designee.
(g) The Exchange Investor agrees for U.S. federal income tax purposes
to treat its exchange of Target Common Stock for Common Shares as described
herein as a transaction described in Section 351(a) of the Internal Revenue Code
of 1986, as amended.
3. Restrictions on Stock. None of the Common Shares (including any
securities received as a result of dividends, splits or any other forms of
recapitalization in respect of such Common Shares) shall be Transferred (as
hereinafter defined), either voluntarily or involuntarily, directly or
indirectly, except (i) pursuant to an effective registration under the
Securities Act (as hereinafter defined), or in a transaction which, in the
opinion of counsel reasonably satisfactory to
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the Company, qualifies as an exempt transaction under the Securities Act and the
rules and regulations promulgated thereunder and (ii) in accordance with the
terms of the Stockholders Agreement, dated as of the Closing Date, by and among
the Company and the Investors (as the same may be amended from time to time, the
"Stockholders Agreement"), such agreement to be substantially in the form
attached hereto as Exhibit A.
4. Representations and Warranties of the Company.
The Company represents and warrants that:
(a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware. Attached hereto as
Exhibits B and C, respectively, are true and complete copies of the Certificate
of Incorporation and the Bylaws of the Company as in effect on the date hereof.
(b) The Company has been recently formed to enter into the Merger
Agreement and to consummate the transactions contemplated thereby and has not
conducted any business other than in connection therewith and certain start-up
activities. Prior to the Exchange Closing Date, the Company will have no assets
or liabilities other than those incurred in connection with the Company's
incorporation and the Company's start-up activities, and those acquired or
assumed pursuant to the Merger Agreement and those acquired or incurred in
connection with the transactions contemplated thereby.
(c) The execution, delivery and performance by the Company of this
Agreement and the Merger Agreement and the consummation of the transactions
contemplated hereby and thereby are within the corporate powers of the Company.
The Board of Directors of the Company (the "Board") has authorized the
execution, delivery, and performance of this Agreement and the Merger Agreement,
and each of the transactions contemplated hereby and thereby. No other corporate
action is necessary to authorize such execution, delivery and performance, and
upon such execution and delivery, each of this Agreement and the Merger
Agreement shall constitute a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. The Board has
authorized the issuance and delivery of the Common Shares in accordance with
this Agreement.
(d) The Common Shares to be issued and sold by the Company pursuant
to this Agreement, when issued in accordance with the provisions hereof, will be
validly issued, fully paid and nonassessable, and each Investor will acquire
good title to such Common Shares, free and clear of any lien or claim of any
kind, other than as contemplated by this Agreement and the Stockholders
Agreement or any liens incurred by the Investors, and no stockholder of the
Company has any preemptive rights to subscribe for any of such Common Shares.
(e) Except for filings by the Investors, if any, under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, the creation,
authorization, issuance, offer and sale of the Common Shares do not require any
consent, approval or authorization of, or filing, registration or qualification
with, any governmental authority on the part of the Company or the vote, consent
or
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approval in any manner of the holders of any security of the Company as a
condition to the execution and delivery of this Agreement or the creation,
authorization, issuance, offer and sale of the Common Shares. The execution and
delivery by the Company of this Agreement and the Merger Agreement and the
performance by the Company of its obligations hereunder and thereunder will not
violate (i) the terms and conditions of the Certificate of Incorporation or the
Bylaws of the Company, or any agreement or instrument to which the Company is a
party or by which it is bound or (ii) subject to the accuracy of the Investors'
representations and warranties contained in Section 5 hereof, any federal or
state law.
(f) Immediately prior to the Sale Closing, the Company will have one
outstanding Common Share. Immediately after the Exchange Closing, the
outstanding capital stock of the Company will consist of 1,338,017 Common Shares
and no Preferred Shares. There are, and immediately after the Closing there will
be, no outstanding (i) securities of the Company convertible into or
exchangeable for shares of capital stock or voting securities of the Company,
(ii) options or other rights to acquire from the Company, or other obligations
of the Company to issue any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of the
Company or (iii) obligations of the Company to repurchase or otherwise acquire
or retire any shares of capital stock or any convertible securities, rights or
options of the type described in clause (i) or (ii).
(g) Other than this Agreement, the Merger Agreement, and the
Stockholders Agreement, no agreement or other arrangement regarding any class of
capital stock of the Company exists between the Company, or any of its
affiliates and any Person. The Company is not a party to, has not agreed to be a
party to, and does not plan to become a party to any agreement or arrangement
with any affiliate, stockholder or other person or entity who will become a
stockholder of the Company in connection with the transactions contemplated by
the Merger Agreement and this Agreement, which has not been disclosed to each
Investor.
(h) There is no investment banker, broker or finder which has been
retained by, will be retained by or is authorized to act on behalf of the
Company who will be entitled to any fee or commission from the Target or the
Company upon consummation of the transactions contemplated by this Agreement.
(i) Neither Company, Merger Sub nor any executive officer or director
of Company or Merger Sub owns any shares of Target Common Stock (or any security
exchangeable for or convertible into such shares).
5. Investor Representations.
Each Investor and with respect to Section 5(h), solely the Exchange
Investor, represents and warrants that:
(a) Offering Exemption. The Investor understands that the Common
Shares have not been registered under the Securities Act, nor qualified under
any state securities laws, and that
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they are being offered and sold pursuant to an exemption from such registration
and qualification based in part upon such Investor's representations contained
herein.
(b) Knowledge of Offer. The Investor is familiar with the business
and operations of the Company and has been given the opportunity to obtain from
the Company all information that such Investor has requested regarding its
business plans and prospects.
(c) Knowledge and Experience; Ability to Bear Economic Risks. The
Investor has such knowledge and experience in financial and business matters
that the Investor is capable of evaluating the merits and risks of the
investment contemplated by this Agreement; and the Investor is able to bear the
economic risk of this investment in the Company (including a complete loss of
this investment).
(d) Limitations on Disposition. The Investor recognizes that no
public market exists for the Common Shares, and none will exist in the future.
The Investor understands that the Investor must bear the economic risk of this
investment indefinitely unless the Common Shares are registered pursuant to the
Securities Act or an exemption from such registration is available, and unless
the disposition of such Common Shares is qualified under applicable state
securities laws or an exemption from such qualification is available, and that
the Company has no obligation or present intention of so registering the Common
Shares. The Investor further understands that there is no assurance that any
exemption from the Securities Act will be available, or, if available, that such
exemption will allow the Investor to Transfer any or all of the Common Shares,
in the amounts, or at the times the Investor might propose. The Investor
understands at the present time Rule 144 promulgated under the Securities Act by
the SEC ("Rule 144") is not applicable to sales of the Common Shares because
they are not registered under Section 12 of the Exchange Act (as defined herein)
and there is not publicly available the information concerning the Company
specified in Rule 144. The Investor further acknowledges that the Company is not
presently under any obligation to register under Section 12 of the Exchange Act
or to make publicly available the information specified in Rule 144 and that it
may never be required to do so. The Investor further acknowledges the
restrictions on disposition and other terms set forth in the Stockholders
Agreement.
(e) Investment Purpose. The Investor is acquiring the Common Shares
solely for its own account for investment and not with a view toward the resale,
Transfer, or distribution thereof, nor with any present intention of
distributing the Common Shares. No other Person (as hereinafter defined) has any
right with respect to or interest in the Common Shares to be purchased by the
Investor, nor has the Investor agreed to give any Person any such interest or
right in the future.
(f) Capacity. The Investor has full power and legal right to execute
and deliver this Agreement and to perform its obligations hereunder.
(g) Previous Acquisitions of Target Common Stock. The Cash Investor
does not own any shares of Target Common Stock. The Exchange Investor has not
acquired any shares of Target Common Stock (or any security exchangeable for or
convertible into such shares) at a price in excess of the Offer Price (as
defined in the Merger Agreement).
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(h) Exchange Shares. Except as stated in a disclosure letter dated
this same date, the Exchange Investor represents that he is the sole beneficial
owner of his Exchange Shares, free and clear of any pledge, lien, security
interest, mortgage, charge, claim, equity, option, proxy, voting restriction,
voting trust or agreement, understanding, arrangement, right of first refusal,
limitation on disposition, adverse claim of ownership or use or encumbrance of
any kind, other than restrictions imposed by the securities laws or pursuant to
this Agreement, that certain Voting Agreement, dated on or about October 24,
2000, by and between Target and the Exchange Investor, and the Merger Agreement.
6. Covenants.
(a) Confidentiality. As to so much of the information and other
material furnished under or in connection with this Agreement (whether furnished
before, on or after the date hereof), as constitutes or contains confidential
business, financial or other information of the Company or any subsidiary, each
of the Investors covenants for itself, its directors, officers and partners and
in its role as a director or officer of the Company or its Subsidiaries, if
applicable, that it will use due care to prevent its officers, directors,
partners, employees, counsel, accountants and other representatives, as the case
may be, from disclosing such information to Persons other than their respective
authorized employees, counsel, accountants, shareholders, partners, limited
partners and other authorized representatives; provided, however, that each
Investor may disclose or deliver any information or other material disclosed to
or received by it should such Investor be advised by its counsel that such
disclosure or delivery is required by law, regulation or judicial or
administrative order. In the event of any termination of this Agreement prior to
the Closing Date, each Investor shall return to the Company all confidential
material previously furnished to such Investor or its officers, directors,
partners, employees, counsel, accountants and other representatives in
connection with this transaction. For purposes of this Section 6(a), "due care"
means at least the same level of care that such Investor would use to protect
the confidentiality of its sensitive or proprietary information, and this
obligation shall survive termination of this Agreement.
(b) Keeping of Books. The Company will keep proper books of record
and account, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Company and its subsidiaries in
accordance with GAAP.
(c) Lost, Etc. Certificates Evidencing Common Shares; Exchange. Upon
receipt by the Company of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of any certificate evidencing any Common Shares
owned by any Investor, and (in the case of loss, theft or destruction) of an
unsecured indemnity satisfactory to it, and upon reimbursement to the Company of
all reasonable expenses incidental thereto, and upon surrender and cancellation
of such certificate, if mutilated, the Company will make and deliver in lieu of
such certificate a new certificate of like tenor and for the number of Common
Shares evidenced by such certificate which remain outstanding. An Investor's
agreement of indemnity shall constitute an indemnity satisfactory to the Company
for purposes of this Section 6. Upon surrender of any certificate representing
any Common Shares for exchange at the office of the Company, the Company at its
expense will cause to be issued in exchange therefor new certificates in such
denomination or denominations as may be requested for the same aggregate number
of Common Shares represented by the certificate so
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surrendered and registered as such holder may request. The Company will also pay
the cost of all deliveries of certificates for such Common Shares to any
Investor (including the cost of insurance against loss or theft in an amount
satisfactory to the holders) upon any exchange provided for in this Section 6.
7. Securities Act Restrictions. In addition to the legend required by
Section 1(a) of the Stockholders Agreement, the certificates evidencing the
Common Shares will bear the following legend reflecting the restrictions on the
transfer of such securities contained in this Agreement:
"The securities evidenced hereby have not been registered under the
Securities Act of 1933, as amended (the "Act"), and may not be
transferred except pursuant to an effective registration under the Act
or in a transaction which, in the opinion of counsel reasonably
satisfactory to the Company, qualifies as an exempt transaction under
the Act and the rules and regulations promulgated thereunder."
8. Other Agreements. On the Exchange Closing Date, the Company and each
of the Investors shall execute and mutually deliver a counterpart of the
Stockholders Agreement. The obligation of the Exchange Investor to contribute
the Target Common Stock to the Company and the obligation of the Company to
issue the Exchange Shares to the Exchange Investor in exchange for such shares
of Target Common Stock are each expressly conditional upon, and subject to, the
Board of Directors of Target taking all action necessary to render the Rights
Agreement inapplicable to such transactions and any and all other transactions
contemplated by this Agreement.
9. Interpretation of this Agreement.
(a) Terms Defined. As used in this Agreement, the following terms
have the respective meaning set forth below:
Exchange Act: the Securities Exchange Act of 1934, as amended.
GAAP: generally accepted accounting principles, consistently applied.
Person: an individual, partnership, joint-stock company, corporation,
limited liability company, trust or unincorporated organization, and a
government or agency or political subdivision thereof.
Rights Agreement: the Rights Agreement, dated May 4, 1999 between the
Target and ChaseMellon Shareholder Services L.L.C.
SEC: the Securities and Exchange Commission or any other federal
agency at the time administering the Securities Act.
Securities Act: the Securities Act of 1933, as amended.
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Transfer: any sale, assignment, pledge, hypothecation, or other
disposition or encumbrance.
(b) Directly or Indirectly. Where any provision in this Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provision shall be applicable whether such action is taken
directly or indirectly by such Person.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed entirely within such State.
(d) Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
10. Termination.
(a) This Agreement may be terminated at any time upon mutual
agreement of the Company, VAC and the Exchange Investor. This Agreement shall
automatically terminate if the Merger Agreement is not executed and delivered by
the parties thereto within five business days of the date hereof.
(b) Upon a termination of this Agreement pursuant to Section 10(a),
the Company shall promptly return any Exchange Instruments delivered to it
pursuant to Section 2(f) to the Exchange Investor.
11. Miscellaneous.
(a) Notices. All communications under this Agreement shall be in
writing and shall be delivered by hand or facsimile or mailed by overnight
courier or by registered mail or certified mail, postage prepaid:
(i) if to the Company:
ValueAct Capital Partners, L.P.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile No.: (000) 000-0000
8
With a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
or at such other address or facsimile number as the Company
may have furnished the other parties hereto in writing;
(ii) if to any Cash Investor, at the address or facsimile number
set forth below such Cash Investor's name on Schedule I
hereto, or at such other address or facsimile number as such
Cash Investor may have furnished the other parties hereto in
writing.
(iii) if to the Exchange Investor:
Xxxx X. Xxxxxx
c/o KENETECH Corporation
000 Xxxxxxx Xxxxxx, #000
Xxx Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxx, Xxxx & Xxxxxxxx
Xxx Xxxxxxxxxx Xx., 00/xx/ Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile No.: (000) 000-0000
Any notice so addressed shall be deemed to be given: if delivered by
hand or facsimile, on the date of such delivery, if a business day, otherwise
the first business day thereafter; if mailed by courier, on the first business
day following the date of such mailing; and if mailed by registered or certified
mail, on the third business day after the date of such mailing.
(b) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, (i) consents, waivers and
modifications relating hereto which may hereafter be executed, (ii) documents
received by the Investors on the Closing Date (except for certificates
evidencing the Common Shares themselves), and (iii) financial statements,
certificates and other information previously or hereafter furnished to the
Investors, may be reproduced by the Investors by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process and the
Investors may destroy any original document so reproduced. All parties hereto
agree and stipulate that any such reproduction shall be admissible in evidence
as the original
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itself in any judicial or administrative proceeding (whether or not the original
is in existence and whether or not such reproduction was made by the Investors
in the regular course of business) and that any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in
evidence.
(c) Survival. All warranties, representations, and covenants made by
the Investors and the Company herein or in any certificate or other instrument
delivered by any Investor or the Company under this Agreement shall be
considered to have been relied upon by the Company or the Investors, as the case
may be, and shall survive all deliveries to the Investors of the Common Shares,
or payment to the Company for such Common Shares, regardless of any
investigation made by the Company or any of the Investors, as the case may be,
or on the Company's or the Investor's behalf. All statements in any such
certificate or other instrument shall constitute representations and warranties
by the Company hereunder.
(d) Attorneys' Fees. In the event that any action or proceeding,
including without limitation arbitration, is commenced by any party hereto for
the purpose of enforcing any provision of this Agreement, the parties to such
action, proceeding or arbitration shall receive as part of any award, judgment,
decision or other resolution of such action, proceeding or arbitration their
costs and reasonable attorneys' fees as determined by the person or body making
such award, judgment, decision or resolution. Should any claim hereunder be
settled short of the commencement of any such action or proceeding, including
arbitration, the parties in such settlement shall be entitled to include as part
of the damages alleged to have been incurred reasonable costs of attorneys or
other professionals in investigation or counseling on such claim.
(e) Successors and Assigns; Third Party Beneficiaries. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties. Each of the parties hereto agree and acknowledge that VAC
shall be entitled to assign its rights and obligations under this agreement to
one or more co-investors provided that each such co-investor agrees in writing
to be bound by terms of this agreement with respect to such assignment.
Notwithstanding the foregoing, no such assignment shall release VAC from its
obligations hereunder. All references herein to "Cash Investor" shall be deemed
to include all such co-investors in the event of any such assignment by VAC.
Each of the parties hereto agree and acknowledge that the Target is a third
party beneficiary of this Agreement with respect to the value being assigned to
the Target Common Stock. Except for the foregoing, this Agreement is not
intended to confer upon any person other than the parties hereto any rights or
remedies hereunder.
(f) Entire Agreement; Amendment and Waiver. This Agreement, the
Stockholders Agreement and the Certificate of Incorporation of the Company
constitute the entire understandings of the parties hereto and supersede all
prior agreements or understandings with respect to the subject matter hereof
among such parties. This Agreement may be amended, and the observance of any
term of this Agreement may be waived, with (and only with) the written consent
of the Company and each of the Investors and, with respect to any change in the
value being assigned to the Target Common Stock, the Target.
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(g) Severability. In the event that any part or parts of this
Agreement shall be held illegal or unenforceable by any court or administrative
body of competent jurisdiction, such determination shall not affect the
remaining provisions of this Agreement which shall remain in full force and
effect.
(h) Limitation on Enforcement of Remedies. The Company hereby agrees
that it will not assert against the partners of any of the Investors any claim
it may have under this Agreement by reason of any failure or alleged failure by
any of the Investors to meet its obligations hereunder.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this SUBSCRIPTION AND
CONTRIBUTION AGREEMENT on the date first written above.
THE COMPANY:
KC HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
-------------------------------
Title: Secretary/Treasurer
------------------------------
THE CASH INVESTOR:
VALUEACT CAPITAL PARTNERS, L.P.
By: VA Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxx
--------------------------
Its: Managing Member
-------------------------
THE EXCHANGE INVESTOR:
/s/ Xxxx X. Xxxxxx
-----------------------------
Xxxx X. Xxxxxx
SCHEDULE I: CASH INVESTORS
Name and Address
----------------
ValueAct Capital Partners, L.P.
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
