Exhibit (d)(8)
EXECUTION COPY
TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement") dated June 12, 2003, is
entered into between KAGT HOLDINGS, INC., a Delaware corporation ("Parent"),
KAGT ACQUISITION CORP., a Delaware corporation and wholly owned subsidiary of
Parent ("Sub"), and [ ], ("Shareholder"), with respect to (i)
the shares of common stock, par value $0.01 per share (the "Company Common
Stock"), of Applied Graphics Technologies, Inc., a Delaware corporation (the
"Company"), including without limitation shares, if any, obtained by the
exercise of the option for 680,067 shares of Company Common Stock granted to
Shareholder as Administrative Agent under the Amended and Restated Credit
Agreement by and between the Company and the lenders party thereto dated March
10, 1999 pursuant to a letter agreement between the Shareholder and Applied
Printing Technologies, L.P. dated July 27, 2001, (ii) all securities
exchangeable, exercisable or convertible into Company Common Stock, and (iii)
any securities issued or exchanged with respect to such shares of Company Common
Stock, and upon any recapitalization, reclassification, merger, consolidation,
spin-off, partial or complete liquidation, stock dividend, split-up or
combination of the securities of the Company or upon any other change in the
Company's capital structure, in each case whether now owned or hereafter
acquired by the Shareholder (collectively, the "Securities").
WITNESSETH:
WHEREAS, Parent, Sub and the Company have entered into an Agreement and
Plan of Merger dated as of the date hereof (as the same may be amended or
supplemented, other than to lower the price to be paid in the Offer or Merger,
the "Merger Agreement") pursuant to which Sub has agreed to make a cash tender
offer described therein and thereafter merge with and into the Company (the
"Merger") with the result that the Company becomes a wholly owned subsidiary of
Parent;
WHEREAS, as of the date hereof, Shareholder beneficially owns and has
the power to dispose of the Securities set forth on Schedule I hereto and has
the power to vote the shares of Company Common Stock set forth thereon;
WHEREAS, Parent and Sub desire to enter into this Agreement in
connection with their efforts to consummate the acquisition of the Company, and
in consideration of Parent's and Sub's agreements herein and in the Merger
Agreement, Shareholder has agreed to cooperate with Parent and Sub with respect
to the acquisition of the Company by Parent and Sub upon the terms and subject
to the conditions in the Merger Agreement; and
WHEREAS, capitalized terms used in this Agreement and not defined have
the meaning given to such terms in the Merger Agreement.
NOW, THEREFORE, in contemplation of the foregoing and in consideration
of the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Certain Covenants.
1.1 Lock-Up. Subject to Section 1.5, Shareholder hereby
covenants and agrees that during the term of this Agreement, Shareholder will
not (a) directly or indirectly, sell, transfer, assign, pledge, hypothecate,
tender, encumber or otherwise dispose of or limit its right to vote in any
manner any of the Securities, or agree to do any of the foregoing, or (b) take
any action which would have the effect of preventing or disabling Shareholder
from performing its obligations under this Agreement. Notwithstanding the
foregoing, in connection with any transfer not involving or relating to any
Company Takeover Proposal (as defined in the Merger Agreement), Shareholder may
transfer any or all of the Securities as follows: (i) in the case of a
Shareholder that is an entity, to any subsidiary, partner or member of
Shareholder, and (ii) in the case of an individual Shareholder, to Shareholder's
spouse, ancestors, descendants or any trust for any of their benefits or to a
charitable trust; provided, however, that in any such case, prior to and as a
condition to the effectiveness of such transfer, (x) each person to which any of
such Securities or any interest in any of such Securities is or may be
transferred (a) shall have executed and delivered to Parent and Sub a
counterpart to this Agreement pursuant to which such person shall be bound by
all of the terms and provisions of this Agreement, and (b) shall have agreed in
writing with Parent and Sub to hold such Securities or interest in such
Securities subject to all of the terms and provisions of this Agreement, and (y)
this Agreement shall be the legal, valid and binding agreement of such person,
enforceable against such person in accordance with its terms, subject to the
qualification, however, that enforcement of the rights and remedies created by
this Agreement is subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general application related to or
affecting creditors' rights and to general equity principles.
1.2 No Solicitation. During the term of this Agreement,
neither (i) the Shareholder, nor (ii) any director, officer, employee or
affiliate under the direct or indirect control of the Shareholder, nor (iii) any
associate, agent or representative of the Shareholder involved in the
Recapitalization Transactions (as defined in the Merger Agreement) ((i), (ii)
and (iii) collectively, "Representatives") shall, directly or indirectly, (a)
solicit, initiate or encourage the submission of any Company Takeover Proposal
or of any other sale, transfer, pledge or other disposition or conversion of any
of the Securities or of any of the other debt or equity securities of the
Company, or (b) participate in or encourage any discussions or negotiations
regarding, or furnish to any person any non-public information with respect to,
enter into any agreement with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any Company Takeover Proposal or any other sale,
transfer, pledge or other disposition or conversion of any of the Securities or
of any of the other debt or equity securities of the Company, in any case, from,
to or with any person other than Parent or Sub. Shareholder will immediately
cease and cause to be terminated any existing activities, discussions or
negotiations with any such other parties conducted heretofore with respect to
any of the foregoing. Shareholder will notify Parent immediately if any party
contacts the Shareholder following the date hereof (other than Parent and Sub)
concerning any Company Takeover Proposal or any other sale, transfer, pledge or
other disposition or conversion of any of the Securities or of any of the other
debt or equity securities of the Company.
1.3 Certain Events. This Agreement and the obligations
hereunder will attach
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to the Securities and will be binding upon any person to which legal or
beneficial ownership of any or all of the Securities passes, whether by
operation of law or otherwise, including without limitation, the Stockholder's
successors or assigns. This Agreement and the obligations hereunder will also
attach to any additional shares of Company Common Stock or other Securities of
the Company issued to or acquired by the Stockholder.
1.4 Grant of Proxy; Voting Agreement.
(a) The Shareholder has revoked or terminated
any proxies, voting agreements or similar arrangements previously given
or entered into with respect to the Securities and hereby irrevocably
appoints Parent as proxy for Shareholder to vote the Securities for
Shareholder and in Shareholder's name, place and stead, at any annual,
special or other meeting or action of the shareholders of the Company,
as applicable, or at any adjournment thereof or pursuant to any consent
of the shareholders of the Company, in lieu of a meeting or otherwise,
whether before or after the closing of the Offer (as defined in the
Merger Agreement), in the following manner: for the adoption and
approval of the Merger Agreement and the Merger. The parties
acknowledge and agree that neither Parent, nor Parent's successors,
assigns, subsidiaries, divisions, employees, officers, directors,
shareholders, agents and affiliates shall owe any duty to, whether in
law or otherwise, or incur any liability of any kind whatsoever,
including without limitation, with respect to any and all claims,
losses, demands, causes of action, costs, expenses (including
reasonable attorney's fees) and compensation of any kind or nature
whatsoever to the Shareholder in connection with or as a result of any
voting (or refrain from voting) by Parent of the Securities subject to
the irrevocable proxy hereby granted to Parent at any annual, special
or other meeting or action or the execution of any consent of the
shareholders of the Company. The parties acknowledge that, pursuant to
the authority hereby granted under the irrevocable proxy, Parent may
vote the Securities in furtherance of its own interests, and Parent is
not acting as a fiduciary for the Shareholder.
(b) Notwithstanding the foregoing grant to
Parent of the irrevocable proxy, if Parent elects not to exercise its
rights to vote the Securities pursuant to the irrevocable proxy,
Shareholder agrees to vote the Securities during the term of this
Agreement favor of or give its consent to, as applicable, a proposal to
adopt and approve the Merger Agreement and the Merger at any annual,
special or other meeting or action of the shareholders of the Company,
in lieu of a meeting or otherwise.
(c) This irrevocable proxy shall not be
terminated by any act of the Shareholder or by operation of law,
whether by the death or incapacity of the Shareholder or by the
occurrence of any other event or events (including, without limiting
the foregoing, the termination of any trust or estate for which
Shareholder is acting as a fiduciary or fiduciaries or the dissolution
or liquidation of any corporation or partnership). If between the
execution hereof and the Termination Date, Shareholder should die or
become incapacitated, or if any trust or estate holding the Securities
should be terminated, or if any corporation or partnership holding the
Securities should be dissolved or liquidated, or if any other such
similar event or events shall occur before the Termination Date,
certificates representing the Securities shall be delivered by or on
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behalf of Shareholder in accordance with the terms and conditions of
the Merger Agreement and this Agreement, and actions taken by the
Parent hereunder shall be as valid as if such death, incapacity,
termination, dissolution, liquidation or other similar event or events
had not occurred, regardless of whether or not the Parent has received
notice of such death, incapacity, termination, dissolution, liquidation
or other event.
1.5 Tender of Securities. Shareholder agrees to tender
the Securities to Sub in the Offer as soon as practicable following the
commencement of the Offer, and in any event not later ten (10) business days
following the commencement of the Offer and Shareholder shall not withdraw any
Securities so tendered unless the Offer is terminated or has expired. Subject to
the terms and conditions of the Offer and the Merger Agreement, Sub hereby
agrees to purchase the shares of Company Common Stock so tendered at a price per
share equal to $0.85 or any higher price that may be paid in the Offer;
provided, however, that Sub's obligations to accept for payment and pay for the
Securities in the Offer is subject to all the terms and conditions of the Offer
set forth in the Merger Agreement and Exhibit A thereto.
1.6 Public Announcement. Shareholder shall consult with
Parent before issuing any press releases or otherwise making any public
statements with respect to the transactions contemplated herein and shall not
issue any such press release or make any such public statement without the
approval of Parent, except as may be required by law, including any filings with
the Securities and Exchange Commission (the "SEC") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
1.7 Disclosure. Shareholder hereby authorizes Parent and
Sub to make any disclosure required by the SEC or the American Stock Exchange
(the "AMEX") or any other national securities exchange (whether in the Offer
Documents, if necessary, the Proxy Statement (each as defined in the Merger
Agreement) or otherwise) or as may be required by applicable law or court
process, including, if required, its identity and ownership of the Securities
and the nature of its commitments, arrangements and understandings under this
Agreement. Parent and Sub hereby authorize Shareholder to make such disclosure
or filings as may be required by the SEC or the AMEX or any other national
securities exchange or as may be required by applicable law or court process.
Notwithstanding anything to the contrary herein, any party to this Agreement
(and each employee, representative, or other agent of such party) may disclose
to any and all persons, without limitation of any kind, the tax treatment and
tax structure of the Offer, the Merger or the other transactions contemplated
hereby and all materials of any kind (including opinions or other tax analyses)
that are provided to it relating to such tax treatment and tax structure;
provided, however, that this sentence shall not permit any disclosure that
otherwise is prohibited by this Agreement if such disclosure would result in a
violation of applicable federal or state securities laws. The preceding sentence
is intended to cause the transactions contemplated hereby to be treated as not
having been offered under conditions of confidentiality for purposes of Section
1.6011-4(b)(3) (or any successor provision) of the Treasury Regulations
promulgated under Section 6011 of the Internal Revenue Code of 1986, as amended,
and shall be construed in a manner consistent with such purpose. In addition,
each party hereto acknowledges that it has no proprietary or exclusive rights to
the federal tax structure of the transactions contemplated hereby or any federal
tax matter or federal tax idea related to the transactions contemplated hereby.
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2. Representations and Warranties of Shareholder. Shareholder
hereby represents and warrants to Parent and Sub, as of the date hereof and as
of the date Sub purchases shares of Company Common Stock pursuant to the Offer,
that:
2.1 Ownership. Shareholder has good and marketable title
to, and is the sole legal and beneficial owner of the Securities, in each case
free and clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever
(collectively, "Liens"). At the time Sub purchases shares of Company Common
Stock pursuant to the Offer, Shareholder will transfer and convey to Parent or
its designee good and marketable title to the shares of Company Common Stock
included in the Securities, free and clear of all Liens created by or arising
through Shareholder.
2.2 Authorization. Shareholder has all requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby and has sole voting power and sole power of
disposition, with respect to the Securities with no restrictions on its voting
rights or rights of disposition pertaining thereto. Shareholder has duly
executed and delivered this Agreement and this Agreement is a legal, valid and
binding agreement of Shareholder, enforceable against Shareholder in accordance
with its terms, subject to the qualification, however, that enforcement of the
rights and remedies created hereby is subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
application related to or affecting creditors' rights and to general equity
principles. If the Shareholder is married and the Securities constitute
community property, this Agreement has been duly authorized, executed and
delivered by the Shareholder's spouse, and this Agreement is a legal, valid and
binding agreement of the Shareholder's spouse, enforceable against the
Shareholder's spouse in accordance with its terms, subject to the qualification
however, that enforcement of the rights and remedies created hereby is subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general application related to or affecting creditors' rights
and to general equity principles.
2.3 No Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) require the Shareholder to file or register with, or obtain any permit,
authorization, consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity other than filings with the SEC pursuant to the Exchange
Act, or (b) violate, or cause a breach of or default under, or conflict with any
contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon the Shareholder,
except for such violations, breaches, defaults or conflicts which are not,
individually or in the aggregate, reasonably likely to have an adverse effect on
the Shareholder's ability to satisfy its obligations under this Agreement. No
proceedings are pending which, if adversely determined, will have an adverse
effect on any ability to vote or dispose of any of the Securities. The
Shareholder has not previously assigned or sold any of the Securities to any
third party.
2.4 Shareholder Has Adequate Information. Shareholder is
a sophisticated seller with respect to the Securities and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the
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Securities and has independently and without reliance upon either Sub or Parent
and based on such information as Shareholder has deemed appropriate, made its
own analysis and decision to enter into this Agreement. Shareholder acknowledges
that neither Sub nor Parent has made and neither makes any representation or
warranty, whether express or implied, of any kind or character except as
expressly set forth in this Agreement. Shareholder acknowledges that the
agreements contained herein with respect to the Securities by Shareholder is
irrevocable, and that Shareholder shall have no recourse to the Securities or
Parent, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
2.5 Parent's Excluded Information. Shareholder
acknowledges and confirms that (a) Sub or Parent may possess or hereafter come
into possession of certain non-public information concerning the Securities and
the Company which is not known to Shareholder and which may be material to
Shareholder's decision to enter into this Agreement and sell the Securities
("Parent's Excluded Information"), (b) Shareholder has requested not to receive
Parent's Excluded Information and has determined to sell the Securities
notwithstanding its lack of knowledge of Parent's Excluded Information, and (c)
Parent shall have no liability or obligation to Shareholder in connection with,
and Shareholder hereby waives and releases Parent from, any claims which
Shareholder or its successors and assigns may have against Parent (whether
pursuant to applicable securities, laws or otherwise) with respect to the
non-disclosure of Parent's Excluded Information; provided, however, nothing
contained in this Section 2.5 shall limit Shareholder's right to rely upon the
express representations and warranties made by Parent in this Agreement, or
Shareholder's remedies in respect of breaches of any such representations and
warranties.
2.6 No Setoff. The Shareholder has no liability or
obligation related to or in connection with the Securities other than the
obligations to Parent and Sub as set forth in this Agreement. There are no legal
or equitable defenses or counterclaims that have been or may be asserted by or
on behalf of the Company, as applicable, to reduce the amount of the Securities
or affect the validity or enforceability of the Securities.
2.7 No Amounts Payable to Shareholder. Except as
disclosed in the Merger Agreement or in the Company's filings with the SEC
pursuant to the Exchange Act, there are no amounts due or payable by the Company
or any Company Subsidiary to the Shareholder or any of its affiliates or
associates in connection with the transactions contemplated by the Merger
Agreement or this Agreement or otherwise (other than any payments required under
the Merger Agreement solely in exchange for equity securities of the Company).
3. Representations and Warranties of Parent and Sub. Parent and
Sub hereby represent and warrant to Shareholder, as of the date hereof that:
3.1 Authorization. Parent and Sub have all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. Parent and Sub have duly
executed and delivered this Agreement and this Agreement is a legal, valid and
binding agreement of each of Parent and Sub, enforceable against each of Parent
and Sub in accordance with its terms, subject to the qualification however, that
enforcement of the rights and remedies created hereby is subject to bankruptcy,
insolvency,
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fraudulent transfer, reorganization, moratorium and similar laws of general
application related to or affecting creditors' rights and to general equity
principles.
3.2 No Violation. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) require Parent to file or register with, or obtain any permit,
authorization, consent or approval of, any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity, or (b) violate, or cause a breach of or default under, any
contract, agreement or understanding, any statute or law, or any judgment,
decree, order, regulation or rule of any governmental agency, authority,
administrative or regulatory body, court or other tribunal, foreign or domestic,
or any other entity or any arbitration award binding upon Parent or Sub, except
for such violations, breaches or defaults which are not reasonably likely to
have a material adverse effect on each of Parent or Sub's ability to satisfy its
obligations under this Agreement.
4. Survival of Representations and Warranties. The respective
representations and warranties of Shareholder and Parent contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto. The representations and warranties contained herein shall
not survive the closing of the transactions contemplated hereby, except that the
representations and warranties contained in Sections 2.4 and 2.5 shall survive
until the expiration of the applicable statute of limitations.
5. Specific Performance. Shareholder acknowledges that Sub and
Parent will be irreparably harmed and that there will be no adequate remedy at
law for a violation of any of the covenants or agreements of Shareholder which
are contained in this Agreement. It is accordingly agreed that, in addition to
any other remedies which may be available to Sub and Parent upon the breach by
Shareholder of such covenants and agreements, Sub and Parent shall have the
right to obtain injunctive relief to restrain any breach or threatened breach of
such covenants or agreements or otherwise to obtain specific performance of any
of such covenants or agreements.
6. Miscellaneous.
6.1 Term. This Agreement shall terminate upon the earlier
of the day after the Offer is terminated or expires or the termination of the
Merger Agreement pursuant to Section 8.01 thereof (the "Termination Date"). At
the Termination Date, this Agreement shall thereupon become void and be of no
further force and effect, provided that nothing herein shall relieve any party
from liability hereof for breaches of this Agreement prior to the Termination
Date.
6.2 Fiduciary Duties. Notwithstanding anything in this
Agreement to the contrary: (a) the Shareholder makes no agreement or
understanding herein in any capacity other than in the Shareholder's capacity as
a record holder and beneficial owner of Securities, and (b) nothing herein will
be construed to limit or affect any action or inaction by the Shareholder or any
Representative of the Shareholder, as applicable, serving on the Company Board
or on the board of directors of any of its subsidiaries or as an officer or
fiduciary of the Company or any of its subsidiaries, acting in such person's
capacity as a director, officer or fiduciary of the Company or any of its
subsidiaries.
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6.3 Expenses. Each of the parties hereto shall pay its
own expenses incurred in connection with this Agreement. Each of the parties
hereto warrants and covenants to the others that it will bear all claims for
brokerage fees attributable to action taken by it.
6.4 Binding Effect. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective representatives and permitted successors and assigns.
6.5 Entire Agreement. This Agreement contains the entire
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
6.6 Headings. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.7 Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and permitted assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties; provided, however, that each of Parent and Sub may freely
assign its rights to another direct or indirect wholly owned subsidiary of
Parent or Sub without such prior written approval but no such assignment shall
relieve Parent or Sub of any of its obligations hereunder. Any purported
assignment without such consent shall be void.
6.8 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be an original, but each of which
together shall constitute one and the same Agreement.
6.9 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given if so given) by delivery, telegram or
telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses (or at such other address for a party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof):
(a) If to Parent KAGT Holdings, Inc.
or Sub: 00 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Attention: Xx. Xxxxxxxxxxx Xxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Ropes & Xxxx LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
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Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
(b) If to
Shareholder: Fleet National Bank
--------------------------------
--------------------------------
Attention:
----------------------
Telecopy:
----------------------
with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
6.10 Governing Law. This Agreement shall be governed by
and construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
6.11 Enforceability. The invalidity or unenforceability of
any provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect. Upon a determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest extent
possible.
6.12 Further Assurances. From time to time, at Parent's
request and without further consideration, Shareholder shall execute and deliver
to Parent such documents and take such action as Parent may reasonably request
in order to consummate more effectively the transactions contemplated hereby and
to vest in Parent good, valid and marketable title to the Securities, including,
but not limited to, using its best efforts to cause the appropriate transfer
agent or registrar to transfer of record the Securities.
6.13 Remedies Not Exclusive. All rights, powers and
remedies provided under this Agreement or otherwise available in respect hereof
at law or in equity will be cumulative and not alternative, and the exercise of
any thereof by either party will not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
6.14 Waiver of Jury Trial. EACH PARTY HERETO IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, Parent, Sub and Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
KAGT HOLDINGS, INC.
By: ___________________________
Name: __________________________
Title: _________________________
KAGT ACQUISITION CORP.
By: ___________________________
Name: __________________________
Title: _________________________
SHAREHOLDER:
[Lender]
By: ___________________________
Name: __________________________
Title: _________________________
