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Exhibit 10.23
OPTION AGREEMENT
This Option Agreement (the "Agreement") is entered into as of May 31,
2000, between Villanova Global Asset Management Trust, a Delaware business trust
("VGAMT") and Villanova Capital, Inc., a Delaware corporation ("VCI").
WHEREAS, Nationwide Mutual Insurance Company ("Nationwide Mutual")
indirectly holds the outstanding capital stock of Nationwide Global Holdings,
Inc. ("Nationwide Global"), a Delaware corporation, which is the Managing
Unitholder of VGAMT and currently holds 6,667 trust units issued by VGAMT (the
"Trust Units"), which constitutes all of the currently issued and outstanding
Trust Units;
WHEREAS, VGAMT indirectly holds the outstanding share capital of Asset
Management Holdings plc ("Gartmore");
WHEREAS, the vesting schedule for this Option, set forth on Exhibit A
hereto, is based on target revenue amounts to be generated by VCI for the
Gartmore Group (as defined below), and includes key assumptions that VCI and
VGAMT believe make such revenue amounts indicative of the synergies and value to
be delivered to the Gartmore Group by VCI; and
WHEREAS, the Managing Unitholder of VGAMT has determined that it is in
the best interests of VGAMT to issue an option to VCI providing for the purchase
of up to a 33 1/3% interest in the Trust Units and VCI has determined it is its
best interest to deliver certain synergies to Gartmore in consideration of the
issuance of such option,
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, VGAMT and VCI hereby agree as follows:
ARTICLE I - DEFINITIONS
Capitalized words in this Agreement shall have the respective meanings
ascribed to them below.
"Accountant" has the meaning set forth in Section 4.1 hereof.
"Aggregate Amount" has the meaning set forth in Section 2.4(a)
hereof.
"Business Day" means any day other than a Saturday, a Sunday
or a day on which banks in New York, New York are required to be closed for
regular banking business.
"EQPP" means the Equity Participation Plan to be adopted by
Gartmore pursuant to which the management of Gartmore will be eligible to
obtain ownership of up to 10% of the share capital of Nationwide UK Holding
Company Limited.
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"Exercise Date" means the date on which VCI provides a Notice
of Exercise and related Exercise Price to VGAMT.
"Exercise Price" has the meaning set forth in Section 2.3(a)
hereof.
"Final Exercise Date" means 12:00 a.m., Eastern Standard Time,
on the first anniversary of the Final Vesting Date.
"Final Vesting Date" has the meaning set forth in Section
2.2(e) hereof.
"Gartmore Group" means Gartmore, its subsidiaries and U.K.
affiliates, and VGAMT.
"Liquidity Event" means a transaction the result of which is
that Nationwide Mutual does not directly or indirectly own 50% or more of the
issued voting share capital of Gartmore, whether as a result of (i) a sale of
Trust Units or shares, as the case may be, of VGAMT, Nationwide Asset
Management Holdings Ltd., Nationwide UK Asset Management Holdings Ltd.,
Nationwide UK Holding Company Ltd., or Gartmore or any intermediate holding
company between Gartmore and Nationwide Global, (ii) a merger, consolidation,
reorganization, share exchange or other business combination transaction
involving VGAMT, Nationwide Asset Management Holdings Ltd., Nationwide UK
Asset Management Holdings Ltd., Nationwide UK Holding Company Ltd., or
Gartmore or any intermediate holding company between Gartmore and Nationwide
Global, (iii) a public offering of equity securities of VGAMT, Nationwide
Asset Management Holdings Ltd., Nationwide UK Asset Management Holdings Ltd.,
Nationwide UK Holding Company Ltd., or Gartmore or any intermediate holding
company between Gartmore and Nationwide Global and/or (iv) otherwise.
"Notice of Exercise" has the meaning set forth in Section
2.3(b) hereof.
"Option" has the meaning set forth in Section 2.1(a) hereof.
"Option Term" means the five-year term during which a Vesting
Date may occur, which term commences on 12:01 a.m., Eastern Standard Time on
July 1, 2000 and expires at 12:00 a.m., Eastern Standard Time on June 30,
2005. Year 1 of the Option Term shall be July 1, 2000 to June 30, 2001; Year 2
of the Option Term shall be July 1, 2001 to June 30, 2002, Year 3 of the
Option Term shall be July 1, 2002 to June 30, 2003, Year 4 of the Option Term
shall be July 1, 2003 to June 30, 2004; and Year 5 of the Option Term shall be
July 1, 2004 to June 30, 2005.
"Option Units" has the meaning set forth in Section 2.4(b)
hereof.
"Preliminary Synergy Report" has the meaning set forth in
Section 2.2(a) hereof.
"Securities Act" means the Securities Act of 1933, as amended.
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"Specified Tranche Percentage" has the meaning set forth in
Section 2.1(b) hereof.
"Synergy Payments" means the payment by VCI to VGAMT for the
Option, which payment consists of revenues that VCI will generate for the
Gartmore Group, as described in the Vesting Schedule.
"Synergy Report" has the meaning set forth in Section 2.2(a)
hereof.
"Target Synergy Payment Adjustment" has the meaning set forth
in Section 3.1 hereof.
"Tranche" has the meaning set forth in Section 2.1(b) hereof.
"Trust Units" has the meaning set forth in the second recital
hereof.
"Vesting Date" has the meaning set forth in Section 2.2(b)
hereof.
"Vesting Schedule" means the target dates for the vesting of
this Option and/or each Tranche or portion hereof following delivery of the
target Synergy Payment, as detailed on Exhibit A hereto.
ARTICLE II - OPTION ISSUANCE AND EXERCISE
2.1 OPTION.
(a) In consideration for the right to receive the Synergy
Payments, VGAMT hereby grants an option (the "Option") to VCI to purchase up to
a 33 1/3% interest in the Trust Units of VGAMT. The Option will vest upon the
delivery of the Synergy Payments as provided below.
(b) The Option will consist of four tranches (each a
"Tranche") with each Tranche representing a specified percentage interest (the
"Specified Tranche Percentage") in VGAMT. The Specified Tranche Percentage for
the first Tranche is 11.11%; the Specified Tranche Percentage for the second
Tranche is 11.11%; the Specified Tranche Percentage for the third Tranche is
5.56%; and the Specified Tranche Percentage for the fourth Tranche is 5.55%.
Each Tranche will vest on a Vesting Date and all or a portion of each Tranche
will vest on the Final Vesting Date.
(c) In the event of any change in the outstanding share
capital of Nationwide UK Holding Company Limited, by reason of a dividend,
split-up, recapitalization, combination, exchange of shares or similar
transaction, or if on the Final Vesting Date, less than 10% of the equity of
Gartmore has been issued and is outstanding (or likely to be outstanding) under
the EQPP for the management employees of Gartmore, the Specified Tranche
Percentage for any unexercised Tranche shall be adjusted appropriately so that
VCI shall thereafter receive upon exercise of this Option in its entirety or any
Tranche thereof the number of Trust Units representing the same percentage
interest in Nationwide UK Holding
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Company Limited that it would have received if such exercise had occurred
immediately prior to such event or the record date thereof, as applicable.
2.2 VESTING OF OPTION.
(a) Within 60 days after June 30 of each year during the
Option Term, VCI shall deliver a report (the "Preliminary Synergy Report") to
VGAMT and Nationwide Global setting forth the amount of Synergy Payments
delivered to VGAMT during the one year period from July 1 of the previous year
to June 30 of such year. Within 15 days after receipt of such Preliminary
Synergy Report, Nationwide Global (i) shall verify that the amount of Synergy
Payments set forth in the Preliminary Synergy Report for such one year period
have been delivered by VCI and the key assumptions associated with the revenues
generated for such one year period have been met by providing VCI written notice
of verification or, (ii) provide VCI with written notice if it disputes anything
contained in the Preliminary Synergy Report. Any dispute that the parties are
unable to resolve regarding the amount of delivered Synergy Payments set forth
in a Preliminary Synergy Report shall be submitted for resolution pursuant to
Article IV hereof. The Preliminary Synergy Report, once verified by Nationwide
Global, is referred to herein as a "Synergy Report".
(b) Except as otherwise set forth in subsection (e) hereto, if
the Synergy Report for any given one year period reflects a Synergy Payment that
equals or exceeds the cumulative target revenue amount set forth on the Vesting
Schedule for such one year period for one or more Tranche(s), then the Specified
Tranche Percentage for such Tranche that will vest with respect to such one year
period on the June 30 of such year preceding the date of such Synergy Report
(the "Vesting Date") shall be calculated as follows:
Specified Tranche Percentage vested on any Vesting Date equals
(A) the product of (i) 33 1/3% and (ii) a fraction, the
numerator of which is the cumulative target revenue amount set
forth on the Vesting Schedule for such Tranche for such one
year period and the denominator of which is the cumulative
target revenue amount set forth on the Vesting Schedule for
the fourth Tranche for such one year period, less (B) the
percentage of the Option that vested previously.
(c) Any or all Tranches may vest for a given period.
(d) No Synergy Payment relating to a previous one year period
shall be counted for purposes of vesting a Tranche for a given one year period.
If a Tranche has vested for any given one year period, then the Synergy Payment
necessary to vest one or more additional Tranches for subsequent one year
periods shall be based on the cumulative target revenue amount set forth on the
Vesting Schedule for such subsequent one year period.
(e) With respect to any portion of this Option that has not
fully vested prior to June 30, 2005, if the Synergy Report for the last one year
period of the Option Term reflects Synergy Payments that equal or exceed the
cumulative target revenue amount set forth on the Vesting Schedule for such one
year period for the first Tranche, then the Specified
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Tranche Percentage of the Option that will vest on June 30 of such year
preceding the date of such report (the "Final Vesting Date") shall be calculated
as follows:
Specified Tranche Percentage vested on the Final Vesting Date
equals (A) the product of (i) 33 1/3% and (ii) a fraction, the
numerator of which is amount of Synergy Payments for the last
one year period of the Option Term and the denominator of
which is 34,890,000, less (B) the percentage of the Option
that vested previously.
(f) Upon the occurrence of a Liquidity Event, any unvested
portion of this Option shall immediately vest and become exercisable.
2.3 EXERCISE OF OPTION.
(a) EXERCISE PRICE. The exercise price (the "Exercise Price")
to be paid to VGAMT by VCI for the purchase of Trust Units upon the exercise of
any vested Tranche (or portion thereof) shall be an amount which is the sum of
(A) the product of (i) the difference between the Specified Tranche Percentage
for such Tranche and (ii) the amount which is 90% of the purchase price (not
including any payments for net assets) paid to National Westminster Bank plc by
Nationwide Mutual or one of its affiliates to acquire Gartmore and (B) the
product of (i) the Specified Tranche Percentage for such Tranche and (ii) the
amount which represents the U.S. GAAP-basis consolidated balance sheet tangible
net asset value (excluding goodwill and all other intangible assets) of VGAMT as
of the last day of the one year period for which such Tranche vested.
(b) METHOD. In the event that VCI wishes to exercise any
vested portion of this Option, VCI shall deliver to VGAMT written notice (the
"Notice of Exercise") stating that it is electing to exercise the Option or a
Tranche or portion thereof that has vested, together with cash or a certified
check or such other consideration acceptable to VGAMT and Nationwide Global for
the appropriate Exercise Price. The Option for each Tranche must be exercised in
whole, and not in part, provided however, that any Tranche that vests in part on
the Final Vesting Date may be exercised to the extent it vests.
(c) EXERCISE DEADLINES. The Option for any Tranche or portion
thereof that has vested may be exercised at any time after such Tranche or
portion thereof has vested. The right to exercise the Option for each Tranche or
portion thereof shall expire at 12 Midnight Eastern Time on the date that is one
year following the Final Vesting Date.
2.4 ISSUANCE OF TRUST UNITS.
(a) The number of Trust Units to be issued by VGAMT upon the
exercise of any Tranche (or portion thereof if applicable) that has vested
equals an amount which is the sum of (A) the product of (i) 6,667 and (ii) a
fraction, the numerator of which is the sum of (a) the Specified Tranche
Percentage for such Tranche expressed as a decimal and (b) the aggregate
Specified Tranche Percentage for all of the Tranches for which Trust Units have
been previously issued by VGAMT pursuant to the Option expressed as a decimal
(the sum of
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(a) and (b) being hereinafter referred to as the "Aggregate Amount") and the
denominator of which is 1 minus the Aggregate Amount less (B) the number of
Trust Units previously issued by VGAMT pursuant to the Option.
(b) Subject to the provisions of Sections 2.5(d) and 4.1(b)
hereof, VGAMT shall issue Trust Units subject to any exercise of this Option
(the "Option Units") to VCI within five (5) Business Days of the Exercise Date.
(c) Unless certificates are specifically requested in the
Notice of Exercise, the Option Units will be issued as book-entry securities.
Any certificate that is issued to represent Option Units, unless at the time of
such exercise such Option Units are registered under the Securities Act, shall
bear a legend substantially in the following form:
THE SECURITY REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY APPLICABLE STATE SECURITIES LAW. NO
TRANSFER, SALE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF
THE SECURITY REPRESENTED BY THIS CERTIFICATE MAY BE MADE
EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES
LAWS OR (B) IF VILLANOVA GLOBAL ASSET MANAGEMENT TRUST
("VGAMT") HAS BEEN FURNISHED WITH AN OPINION OF COUNSEL FOR
THE HOLDER HEREOF, WHICH OPINION OF COUNSEL SHALL BE
REASONABLY SATISFACTORY TO VGAMT, OR NO-ACTION LETTERS FROM
THE SECURITIES AND EXCHANGE COMMISSION AND ANY RELEVANT STATE
SECURITIES COMMISSION, OR OTHER EVIDENCE REASONABLY
SATISFACTORY TO VGAMT, TO THE EFFECT THAT SUCH TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS
EXEMPT FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT
AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER, AND ANY
APPLICABLE SECURITIES LAWS. IN ADDITION THE SECURITY
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO CERTAIN
PROVISIONS OF THE OPTION AGREEMENT DATED MAY 31, 2000 WHICH
MAY RESTRICT THE ABILITY OF THE HOLDER HEREOF TO TRANSFER IT.
2.5 TERMINATION OF OPTION. Any portion of this Option that remains
unexercised as of the Final Exercise Date shall automatically terminate on the
Final Exercise Date.
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ARTICLE III - OTHER AGREEMENTS
3.1 TARGET SYNERGY PAYMENT ADJUSTMENT. In the event that one or more
key assumptions (as an example, the key assumption relating to profit margins
associated with revenues generated for any given one year period) used to
establish the target revenue amounts set forth in the Vesting Schedule have not
been met, then the target revenue amounts set forth in the Vesting Schedule
shall be adjusted to reflect such revised assumptions as mutually agreed by the
parties hereto (a "Target Synergy Payment Adjustment").
3.2 INVESTMENT REPRESENTATION; TRANSFER RESTRICTIONS.
(a) VCI, by acceptance hereof and of the Option Units to be
issued from time to time hereunder, represents and warrants that this Agreement
and the Option Units issuable upon exercise of this Option or any portion
thereof are being acquired by it for its own account for investment, and not
with a view to, or for the sale in connection with, any public distribution
thereof within the meaning of the Securities Act.
(b) VCI, by acceptance hereof and of the Option Units to be
issued from time to time hereunder, agrees (i) that such Option Units will be
subject to the restrictions set forth on the legend contained in Section 2.5(b)
hereto and (ii) until the occurrence of a Liquidity Event or as otherwise agreed
to by the parties, that such Option Units may not be transferred to any party
without the prior written consent of VGAMT (which may be given or withheld in
its sole discretion).
3.3 COVENANTS REGARDING VGAMT.
(a) VGAMT shall take all reasonable actions necessary to reserve
and keep available out of its authorized but unissued Trust Units the full
number of Trust Units that may be issued pursuant to this Option.
(b) VGAMT shall take all corporate action and other actions as
shall from time to time be necessary to insure that all of its Trust Units to be
issued hereunder will, upon issue, be duly and validly authorized and issued,
fully paid and nonassessable and free of any preemptive or similar rights.
(c) VGAMT shall not, by amendment of its Certificate of Trust or
Declaration of Trust and Trust Agreement or through any reorganization, transfer
of assets, consolidation or merger, dissolution, issuance or sale of securities
or otherwise, to avoid or take action which would have the effect of avoiding
the observation or performance of any of the terms to be observed or performed
hereunder, but will at all times assist in the carrying out of the provisions of
this Agreement; provided that nothing contained herein shall prevent VGAMT from
entering into an agreement or taking other action in connection with a Liquidity
Event and provided further that nothing contained herein shall prevent Gartmore
or VGAMT from paying dividends to its shareholders or unitholders, as the case
may be, at any time from the date hereof, provided, solely with respect to the
payment of dividends, all outstanding obligations of VGAMT under the cooperation
agreement or similar agreement, if any, between VCI and VGAMT, have been
discharged or VCI has otherwise agreed in writing.
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3.4 NO RIGHTS AS UNITHOLDER. Nothing contained in this Agreement
shall be construed as conferring upon VCI any rights as a unitholder of VGAMT,
and nothing shall be construed as imposing any liabilities of VCI as a
unitholder of VGAMT. It is understood that following exercise of any vested
portion of this Option and receipt of any related Trust Units, VCI will have the
rights and liabilities of a unitholder of VGAMT with respect to such Trust
Units.
ARTICLE IV - DISPUTE RESOLUTION
4.1 ALTERNATIVE DISPUTE RESOLUTION.
(a) In the event that the parties are unable to resolve any
dispute regarding the amount of the Exercise Price or with respect to the amount
of delivered Synergy Payments set forth in a Preliminary Synergy Report, such
dispute shall be referred to the accounting firm providing annual audit services
to Nationwide Mutual for the most recently completed accounting period (or, if
such accounting firm is unable to provide services with respect to a dispute,
another mutually agreed accounting firm) (the "Accountant"). If the dispute is
referred to the Accountant, on the fifth Business Day after the such referral,
each party shall submit its position regarding the dispute to the Accountant by
making a written submission to the Accountant and to the other party, which
written submission shall include the submitting party's position regarding such
dispute, including supporting documentation. Each party shall then have two (2)
Business Days following the date of the initial submissions to submit to the
Accountant and to the other party further documentation of its position on the
issues(s); provided, however, that if a party fails to make a timely and
complete submission to the Accountant, such party shall be deemed to have
conceded the dispute. Upon receipt of final submissions from both parties with
respect to a given dispute, the Accountant shall have seven (7) Business Days in
which to resolve the dispute. The decision of the Accountant shall be final and
binding upon the parties, and each party shall bear its own costs plus one-half
(1/2) of the costs of the Accountant.
(b) VGAMT shall not be obligated to issue any Option Units to VCI
pursuant to a Notice of Exercise if the Exercise Price for such Option Units or
vested status of the related portion of the Option is being determined in
accordance with this Article IV. VGAMT shall issue such Option Units within five
(5) Business Days of the date of the decision of the Accountant.
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ARTICLE V - MISCELLANEOUS
5.1 NOTICES. Where this Agreement provides for notice of any event,
such notice shall be given, unless otherwise herein expressly provided, in
writing and may be personally served, telecopied or sent by nationally
recognized overnight courier service and shall be deemed to have been given when
delivered in person or otherwise upon receipt. For purposes hereof, the address
of the parties hereto (until delivery of a notice of change thereof delivered in
accordance herewith) shall be as set forth below:
If to VGAMT, to:
Villanova Global Asset Management Trust
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
President and Chief Executive Officer
with a copy to its Managing Unitholder:
Nationwide Global Holdings, Inc.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Associate Vice President and Director-Finance
If to VCI, to:
Villanova Capital, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Executive Vice President - Mergers & Acquisitions
5.2 GOVERNING LAW. This Agreement shall governed by and construed in
accordance with the internal laws of the State of Delaware without giving effect
to conflicts of laws principles.
5.3 AMENDMENTS AND MODIFICATIONS. This Agreement may be amended and
modified only by written agreement of the parties hereto.
5.4 BINDING EFFECT; SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors, permitted assigns and legal representatives. This Agreement may not
be assigned or otherwise transferred, in whole or in part, by either party
hereto without the prior written consent of the other party.
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5.5 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same agreement, it being understood that
all parties need not sign the same counterpart.
5.6 HEADINGS. The headings in this Agreement are for reference only,
and shall not affect the interpretation of this Agreement.
5.7 ENTIRE AGREEMENT. This Agreement and its exhibits constitute the
entire agreement among the parties hereto relating to the subject matter hereof
and supercede all prior agreements, understandings, negotiations and
discussions, whether oral or written of the parties.
5.8 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the parties hereto direct that such court interpret and apply
the remainder of this Agreement in the manner that it determines most closely
effectuates their intent in entering into this Agreement, and in doing so
particularly take into account the relative importance of the term, provision,
covenant or restriction being held invalid, void or unenforceable.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first set forth above.
VILLANOVA GLOBAL ASSET MANAGEMENT TRUST
By: NATIONWIDE GLOBAL HOLDINGS, INC.,
its Managing Unitholder
By: ________________________________
Name:
Title:
VILLANOVA CAPITAL, INC.
By: _____________________________________
Name:
Title:
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EXHIBIT A
OPTION VESTING SCHEDULE
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PRESENT OPTION SPECIFIED YEAR 1 YEAR 1 YEAR 2 YEAR 2 YEAR 3 YEAR 3
VESTED TRANCHE TRANCHE TARGET CUMULATIVE TARGET CUMULATIVE TARGET CUMULATIVE
OF TRUST PERCENTAGE REVENUES TARGET REVENUES TARGET REVENUES TARGET
UNITS OF OF TRANCHE BY OPTION REVENUES* BY OPTION REVENUES BY OPTION REVENUES*
VGAMT TRANCHE* TRANCHE* TRANCHE*
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11.11% 1st Tranche 11.11% $6,886 $6,886 $7,850 $7,850 $8,949 $8,949
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22.22% 2nd Tranche 11.11% $6,886 $13,772 $7,850 $15,700 $8,949 $17,898
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27.78% 3rd Tranche 5.56% $3,443 $17,215 $3,925 $19,625 $4,474 $22,372
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33.33% 4th Tranche 5.55% $3,443 $20,658 $3,925 $23,550 $4,474 $25,846
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PRESENT OPTION SPECIFIED YEAR 4 YEAR 4 YEAR 5 YEAR 5
VESTED TRANCHE TRANCHE TARGET CUMULATIVE TARGET CUMULATIVE
OF TRUST PERCENTAGE REVENUES TARGET REVENUES TARGET
UNITS OF OF TRANCHE BY OPTION REVENUES* BY OPTION REVENUES*
VGAMT TRANCHE* TRANCHE*
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11.11% 1st Tranche 11.11% $10,202 $10,202 $11,630 $11,630
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22.22% 2nd Tranche 11.11% $10,202 $20,404 $11,630 $23,260
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27.78% 3rd Tranche 5.56% $5,101 $25,505 $5,815 $29,075
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33.33% 4th Tranche 5.55% $5,101 $30,606 $5,815 $34,890
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* U.S. Dollars in thousands
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