SALES AGENCY AGREEMENT
Exhibit C
May 18, 2009
XXXXXXX XXXXX & ASSOCIATES, INC.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Dear Sir or Madam:
This agreement (the “Agreement”) sets forth the terms and conditions upon which XxXxxx De
Leeuw and Co. IV, L.P., XxXxxx De Leeuw and Co. IV Associates, L.P. and Delta Fund LLC (each, a
“Selling Unitholder” and collectively, the “Selling Unitholders”) have engaged Xxxxxxx Xxxxx &
Associates, Inc. (the “Sales Agent”) to serve as the Selling Unitholders’ exclusive agent with
respect to the placement of common units (the “Units”), representing limited partner interests of
StoneMor Partners L.P. (the “Company”). Exhibit A hereto sets forth the number of Units
held by the Selling Unitholders as of the date hereof.
The Selling Unitholders and the Sales Agent agree as follows:
1. Agreement to Act as Sales Agent. On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and conditions herein set
forth, the Selling Unitholders agree to sell through the Sales Agent, as exclusive Sales Agent, and
the Sales Agent agrees to sell, as Sales Agent for the Selling Unitholders, on a reasonable efforts
basis, up to 924,684 Units (the “Maximum Amount”) on the terms set forth herein. The execution of
this Agreement by the parties hereto does not constitute a guarantee that the Sales Agent will be
able to complete any sales of the Units, nor shall this Agreement be construed to require the Sales
Agent to purchase any Units for its own account.
2. Delivery. The Units, up to the Maximum Amount, may be sold in a single
transaction, multiple transactions, or otherwise as agreed to between the Selling Unitholders and
the Sales Agent. The sales prices for the Units will be determined by negotiations between the
Sales Agent and potential buyers and then presented to the Selling Unitholders. The Selling
Unitholders shall have sole discretion to accept or decline each offer by a potential buyer to
acquire all or any portion of the Units. The Selling Unitholders agree to sell such Units up to
the Maximum Amount through the Sales Agent, and the number of Units sold in each transaction shall
be allocated on a pro rata basis among the Selling Unitholders based on the number of Units held by
each Selling Unitholder as set forth on Exhibit A. As compensation for its services
hereunder, the Sales Agent shall receive a commission of 5.0% of the gross price of the Units sold.
After deducting the above-referenced commissions and any further
deduction for any transaction fees imposed by any governmental or self-regulatory organization
in respect of such sales, the Sales Agent shall remit the net proceeds to the Selling Unitholders
for such Units (the “Net Proceeds”).
The Selling Unitholders or the Sales Agent may, upon notice to the other party hereto by
telephone (confirmed promptly by telecopy), suspend the Sales Agent’s efforts hereunder with
respect to any unsold Units; provided, however, that such suspension or termination
shall not affect or impair the parties’ respective obligations with respect to Units sold hereunder
prior to the giving of such notice.
Unless otherwise agreed, settlement for sales of Units will occur on the third trading day
following the date on which such sales are made (each a “Closing Date”). The amount of proceeds
for such sales to be delivered to the Selling Unitholders against the receipt of the Units sold
shall be the Net Proceeds in respect of such sales. If any Selling Unitholder shall default on its
obligation to deliver Units on any Closing Date, the defaulting Selling Unitholder shall, in
addition to the provisions of Section 3.6 hereof, (a) hold the Sales Agent harmless against any
loss, claim or damage arising from or as a result of such default by the Selling Unitholder and (b)
pay the Sales Agent any commission to which it would otherwise be entitled absent such default.
3. Representations, Warranties and Agreements of the Selling Unitholder. For purposes
of this Section 3, the “knowledge” and “awareness” of the “Selling Unitholder” shall mean the
actual knowledge of (i) in the case of XxXxxx De Leeuw and Co. IV, L.P. and XxXxxx De Leeuw and Co.
IV Associates, L.P., the managing members of MDC Management Company IV, LLC, and (ii) in the case
of Delta Fund LLC, the voting members of Delta Fund LLC. Each Selling Unitholder, severally but
not jointly, represents and warrants and covenants to the Sales Agent as of the date hereof that:
3.1 Due Execution and Delivery. The Selling Unitholder has full power and authority
to enter into this Agreement and to carry out all the terms and provisions hereof to be carried out
by it. All authorizations and consents necessary for the execution and delivery by the Selling
Unitholder of this Agreement have been given. This Agreement constitutes a valid and binding
agreement of the Selling Unitholder and is enforceable against the Selling Unitholder in accordance
with the terms hereof, except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws now or hereafter in effect relating to or affecting creditors’ rights
generally or by general principles of equity relating to the availability of remedies.
3.2 Good Title. The Selling Unitholder, at the time of delivery hereunder, will have
(a) good and marketable title to the Units to be sold by the Selling Unitholder hereunder, free and
clear of all encumbrances, and (b) full legal right and power, and all authorizations and approvals
required by law, to sell, transfer and deliver the Units to any potential buyer and to make the
representations, warranties, covenants and agreements made by the Selling Unitholder herein.
3.3 Consents. No consent, approval, authorization or order of, or any filing or
declaration with, any governmental body is required for the consummation by the Selling Unitholder
of the transactions on its part contemplated herein.
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3.4 Registration Statement. The Company has filed with the Securities and Exchange
Commission (the “Commission”) a registration statement on Form S-3 (File No.
333-144453) (the “Resale Registration Statement”), which has become effective for the
registration under the Securities Act of 1933, as amended (the “Securities Act”) of the Units. As
of the date hereof and as of the date of any transaction executed pursuant to this Agreement, the
Selling Unitholder has no knowledge that the Resale Registration Statement is subject to any stop
order or any similar proceeding by the Commission.
3.5 Material Adverse Information. The sale of the Units proposed to be sold by the
Selling Unitholder is not prompted by the Selling Unitholder’s knowledge of any material non-public
adverse information concerning the Company or the Units. The Company has not disclosed to the
Selling Unitholder, and the Selling Unitholder is not aware of, any information about the Company
that would constitute material non-public adverse information concerning the Company or the Units.
3.6 Failure to Deliver Certificates. In addition to any other rights available to the
Sales Agent, if, with respect to each transaction effected pursuant to this Agreement, the Selling
Unitholder fails to deliver the Units to the Sales Agent by the Delivery Date (as defined below),
and if after the Delivery Date the Sales Agent purchases (in an open market transaction or
otherwise) the Company’s common units to deliver in satisfaction of any transaction effected
pursuant to this Agreement, then the Selling Unitholder shall immediately pay in cash to the Sales
Agent (in addition to any remedies available to or elected by the Sales Agent) the amount by which
(a) the Sales Agent’s total purchase price (including brokerage commissions paid to a third party,
if any) for the Company’s common units so purchased exceeds (b) the total purchase price for the
Units sold by the Selling Unitholder in the transaction for which the Selling Unitholder failed to
make timely delivery (which amount shall be paid as liquidated damages and not as a penalty).
“Delivery Date” shall mean the second trading day after Units have been sold in a transaction
pursuant to this Agreement.
3.7 No Transfer Taxes or Other Fees. There are no transfer taxes or other similar
fees or charges under Federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this Agreement or the sale of
the Units by the Selling Unitholder.
3.8 No Stabilization or Manipulation. The Selling Unitholder has not taken, and will
not take, directly or indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Units.
3.9 Cash Distributions. The Selling Unitholder is not aware of any plans by the
Company to reduce its quarterly distribution below 55.5 cents per common unit for the distributions
that would be declared in August 2009 and November 2009 in the ordinary course. The Selling
Unitholder understands and agrees that, with respect to any Units sold pursuant to this Agreement,
it has no right to receive any cash distribution having an ex-
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dividend date after the execution
date of such sales. If the Selling Unitholder is paid such distribution by the Company or any
agent of the Company, the Selling Unitholder shall promptly transfer the amount of such
distribution in accordance with the written instructions of the Sales Agent.
3.10 Material Information. As of the date hereof, the information with respect to the
Selling Unitholder included in the Resale Registration Statement and the prospectus constituting a
part thereof and in any amendment or supplement thereto dated as of or prior to the date hereof
does not contain any untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein not misleading.
4. Indemnification. (a) Each Selling Unitholder, severally but not jointly, agrees to
indemnify and hold harmless the Sales Agent, the directors, officers, employees and agents of the
Sales Agent and each person, if any, who controls the Sales Agent within the meaning of Section 15
of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), from and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other expenses reasonably
incurred in connection with, and any and all amounts paid in settlement of, any action, suit or
proceeding between any of the indemnified parties, on the one hand, and any indemnifying parties,
on the other hand, or between any indemnified party and any third party, or otherwise, or any claim
asserted), as and when incurred, to which the Sales Agent, or any such person, may become subject
under the Securities Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, liabilities, expenses or damages arise
out of or are based on (i) any untrue statement or alleged untrue statement of a material fact
contained in or a material omission from the Resale Registration Statement or the prospectus
constituting a part thereof or any amendment or supplement thereto, in each case only to the extent
that the statement or omission was made in reliance upon and in conformity with written information
regarding the Selling Unitholder furnished by the Selling Unitholder to the Company expressly and
specifically for inclusion therein, it being understood and agreed that the only such information
furnished by the Selling Unitholder to the Company consists of the information relating to the
Selling Unitholder that appears in the table under the caption “Selling Unitholders” in the Resale
Registration Statement and the prospectus constituting a part thereof and in any amendment or
supplement thereto, (ii) breach of any representation, warranty, covenant or agreement made by the
Selling Unitholder herein, or (iii) the engagement of the Sales Agent pursuant to, and the
performance by the Sales Agent of the services contemplated by, this Agreement in accordance with
its terms; provided that (i) this indemnity agreement shall not apply (x) to the extent that such
loss, claim, liability, expense or damage is found in a final, non-appealable judgment by a court
of competent jurisdiction to have resulted from the breach of this Agreement by the Sales Agent or
by the bad faith, willful misconduct or gross negligence of the Sales Agent or (y) to any matter
for which the Sales Agent agrees to indemnify the Selling Unitholder under Section 4(c) hereof and
(ii) the total liability of the Selling Unitholder under this indemnity agreement and under the
contribution agreement contained in Section 4(d) hereof shall be limited to the Net
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Proceeds. This
indemnity agreement will be in addition to any liability that the Selling Unitholder might
otherwise have.
(b) If the Sales Agent proposes to assert the right to be indemnified under this Section 4,
the Sales Agent will, promptly after receipt of notice of commencement of any action against such
Sales Agent in respect of which a claim is to be made against a Selling Unitholder under this
Section 4, notify the Selling Unitholder of the commencement of such
action, enclosing a copy of all papers served, but the omission so to notify the Selling
Unitholder will not relieve the Selling Unitholder from (i) any liability that it might have to any
indemnified party otherwise than under this Section 4 and (ii) any liability that it may have to
any indemnified party under the foregoing provision of this Section 4 unless, and only to the
extent that, such omission results in the forfeiture of substantive rights or defenses by the
Selling Unitholder. If any such action is brought against any indemnified party and it notifies
the Selling Unitholder of its commencement, the Selling Unitholder will be entitled to participate
in and, to the extent that it elects, by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the indemnified party, to
assume the defense of the action, with counsel satisfactory to the indemnified party, and after
notice from the Selling Unitholder to the indemnified party of its election to assume the defense,
the Selling Unitholder will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation subsequently incurred
by the indemnified party at the request of the Selling Unitholder in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such action, but the
fees, expenses and other charges of such counsel will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been authorized in writing by the
Selling Unitholder, (2) the indemnified party has reasonably concluded (based on advice of counsel)
that there may be legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the Selling Unitholder, (3) a conflict or potential
conflict exists (based on advice of counsel to the indemnified party) between the indemnified party
and the Selling Unitholder (in which case the Selling Unitholder will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the Selling Unitholder has
not in fact employed counsel to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the Selling Unitholder. It is
understood that the Selling Unitholder shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm admitted to practice in such jurisdiction at any one time
for all such indemnified party or parties. All such fees, disbursements and other charges will be
reimbursed by the indemnifying party promptly as they are incurred. The Selling Unitholder will
not be liable for any settlement of any action or claim effected without its written consent (which
consent will not be unreasonably withheld).
(c) In addition to all other covenants and agreements of the Sales Agent set forth in this
Agreement, the Sales Agent covenants and agrees with each Selling Unitholder,
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(i) to be registered
and in good standing as a broker/dealer with the Commission and each state where the Sales Agent
may be required to be registered and in good standing in order to place the Units in accordance
with this Agreement; (ii) to comply in connection with its activities under this Agreement with all
applicable requirements of the Securities Act and the Exchange Act, the rules and regulations
issued thereunder, any applicable state securities laws and the rules and regulations thereunder,
and the regulations of the Financial Industry Regulatory Authority, Inc.; and (iii) not to make any
untrue statements of a material fact or omit to state any material fact necessary to be stated, to
make statements made by the Sales Agent (in light of the circumstances under which they are made
and the total mix of information concerning
the Company and the Units that is then publicly available on the basis of disclosures that
have been made by the Company) not misleading. The Sales Agent agrees to indemnify and hold
harmless each Selling Unitholder from and against any and all losses, claims, liabilities, expenses
and damages (including without limitation those of a type or nature described by Section 4(a)
hereof), as and when incurred, to which the Selling Unitholder may become subject, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based upon any breach of any
representation, warranty, covenant, or agreement made by the Sales Agent herein; provided that this
indemnity agreement shall not apply to the extent that such loss, claim, liability, expense or
damage is found in a final, non-appealable judgment by a court of competent jurisdiction to have
resulted from the bad faith, willful misconduct or gross negligence of the Selling Unitholder.
This indemnity agreement shall be in addition to any liability that the Sales Agent might otherwise
have.
(d) In order to provide for just and equitable contribution in circumstances in which the
indemnification provided for in the foregoing paragraphs of this Section 4 is applicable in
accordance with its terms but for any reason is held to be unavailable from the indemnifying party,
the indemnifying party will contribute to the total losses, claims, liabilities, expenses and
damages (including any investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted)
to which the indemnifying party and the indemnified party may be subject in such proportion as
shall be appropriate to reflect the relative fault of the indemnifying party on the one hand, and
the indemnified party on the other, in connection with the statements or omissions which resulted
in such losses, claims, liabilities, expenses and damages, or if the foregoing allocation is not
permitted by applicable law, the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative fault but also the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, as well as any other
relevant equitable considerations. The relative benefits received by a Selling Unitholder on the
one hand and the Sales Agent on the other hand shall be deemed to be the same proportion as the
total net proceeds from the sale of Units (before deducting expenses) received by the Selling
Unitholder bear to the total compensation (before deducting expenses) received by the Sales Agent
from the sale of Units on behalf of the Selling Unitholder. Each Selling Unitholder and the Sales
Agent agree that it would not be just and equitable if contributions pursuant to this Section 4(d)
were to be determined by pro rata allocation or by any other method of allocation which does not
take into account the equitable considerations referred to herein.
The amount paid or payable by
an
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indemnified party as a result of the loss, claim, liability, expense or damage or action in
respect thereof, referred to above in this Section 4(d) shall be deemed to include, for the purpose
of this Section 4(d), any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the foregoing
provisions of this Section 4(d), (i) the Sales Agent shall not be required to contribute any amount
in excess of the commissions received by it under the Agreement, (ii) the total liability of a
Selling Unitholder under the contribution agreement contained in this paragraph and under the
indemnity agreement contained in Section 4(b) hereof shall be limited to the Net Proceeds, and
(iii) no person found guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 4(d), any person
who controls a party to this Agreement within the meaning of the Securities Act and any
officers, directors, employees or agents of the Sales Agent, will have the same rights to
contribution as that party. Any party entitled to contribution, promptly after receipt of notice
of commencement of any action against such party in respect of which a claim for contribution may
be made under this Section 4(d), will notify any such party or parties from whom contribution may
be sought, but the omission so to notify will not relieve that party or parties from whom
contribution may be sought from any other obligation it or they may have under this Section 4(d),
unless, and only to the extent that, such omission results in the forfeiture of substantive rights
or defenses by the party from whom contribution may be sought. Except for a settlement entered
into pursuant to the last sentence of Section 4(b) hereof, no party will be liable for contribution
with respect to any action or claim settled without its written consent (which consent will not be
unreasonably withheld).
5. Termination. This agreement shall expire on May 29, 2009 unless extended by mutual
written consent of the parties.
6. Conditions Precedent to Sale. Each sale of Units pursuant to this Agreement shall
be subject to the following conditions, unless waived in writing by the Sales Agent:
(a) No stop order suspending the effectiveness of the Resale Registration Statement shall have
been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of
the Selling Unitholders, threatened by the Commission;
(b) The Resale Registration Statement and the prospectus constituting a part thereof and any
amendment or supplement thereto, shall not contain an untrue statement of fact that in the Sales
Agent’s opinion is material, or omits to state a fact that in the Sales Agent’s reasonable opinion
is material and is required to be stated therein or is necessary to make the statements therein not
misleading;
(c) The Units shall have been duly listed, subject to notice of issuance, on the Nasdaq Global
Market; and
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(d) The Selling Unitholders shall have furnished to the Sales Agent such appropriate further
information, certificates and documents as the Sales Agent may reasonably request.
7. Independent Parties. The Selling Unitholders acknowledge and agree that: (i) the
sale of the Units pursuant to this Agreement, including the determination of the transaction price
and any related discounts and commissions, is an arm’s-length commercial transaction between the
Selling Unitholders, on the one hand, and the Sales Agent, on the other hand, and the Selling
Unitholders are capable of evaluating and understanding and understands and accepts the terms,
risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with
the transaction contemplated hereby and the process leading to such transaction the Sales Agent has
been acting solely as a principal and is not the financial advisor, agent or fiduciary of the
Selling Unitholders; (iii) the Sales Agent has not assumed and will not assume an advisory, agency
or fiduciary responsibility in favor of the Selling Unitholders with respect to any of the
transactions contemplated hereby or the process leading thereto and the
Sales Agent has no obligation to the Selling Unitholders with respect to the transactions
contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the Sales
Agent and its affiliates may be engaged in a broad range of transactions and relationships,
including transactions in the Company’s common units or transactions involving the Company, that
involve interests that differ from those of the Selling Unitholders and that the Sales Agent has no
obligation to disclose information relating to, or arising out of, such transactions or
relationships by virtue of any advisory, agency or fiduciary relationship; and (v) the Sales Agent
has not provided any legal, accounting, regulatory or tax advice with respect to the transactions
contemplated hereby and the Selling Unitholders have consulted their own legal, accounting,
regulatory and tax advisors to the extent deemed appropriate.
8. Notices. Notice given pursuant to any of the provisions of this Agreement shall be
in writing and, unless otherwise specified, shall be mailed or delivered (a) if to the Selling
Unitholders, to XxXxxx De Leeuw & Co., Inc., 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxxxx
00000, Attention: Xxxx Xxxxxxxxx, with a copy to Xxxxxx Godward Kronish LLP, One Freedom Square,
Reston Town Center, 00000 Xxxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. XxXxxxxxx, or
(b) if to the Sales Agent, at the office of Xxxxxxx Xxxxx & Associates, Inc., 000 Xxxxxxxx Xxxxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxx Xxxxxxxxx. Any such notice shall be effective only
upon receipt. Any notice under this Section 8 may be made by facsimile or telephone, but if so
made shall be subsequently confirmed in writing.
9. Survival. The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Selling Unitholders set forth in this Agreement or made by
or on their behalf pursuant to this Agreement shall remain in full force and effect, regardless of
(i) any investigation made by or on behalf of a Selling Unitholder, any of its officers or
directors, the Sales Agent or any controlling person referred to in Section 4 hereof and (ii)
delivery of and payment for the Units. The respective agreements, covenants, indemnities and other
statements set forth in the last paragraph of Section 2, Section 3.6, Section 4, Section 9
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and Section 11 hereof shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
10. Successors. This Agreement shall inure to the benefit of and shall be binding
upon the Sales Agent, the Selling Unitholders and their respective successors, heirs, personal
representatives and legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable right, remedy or
claim under or in respect of this Agreement, or any provisions herein contained, this Agreement and
all conditions and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that the indemnification
contained in Section 4 hereof shall also be for the benefit of the directors, officers, employees
and agents of the Sales Agent and any person or persons who control the Sales Agent within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act.
11. Applicable Law. The validity and interpretations of this Agreement, and the terms
and conditions set forth herein, shall be governed by and construed in accordance with the laws of
the State of New York, without giving effect to any provisions relating to conflicts of laws.
12. Consent to Jurisdiction. The Selling Unitholders irrevocably consent to the
jurisdiction of the courts of the State of New York and of any federal court located in such State
in connection with any action or proceeding arising out of, or relating to, this Agreement, any
document or instrument delivered pursuant to, in connection with, or simultaneously with this
Agreement, or a breach of this Agreement or any such document or instrument. In any such action or
proceeding, the Selling Unitholders waive personal service of any summons, complaint, or other
process and agree that service thereof may be made in accordance with Section 8 hereof.
13. 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. Facsimile signatures shall be deemed original signatures.
14. Entire Agreement. This Agreement constitutes the entire understanding between the
parties hereto as to the matters covered hereby and supersedes all prior understandings, written or
oral, relating to such subject matter.
[The remainder of this page is intentionally left blank.]
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Each party hereby indicates its agreement to the foregoing by executing this Agreement in the
space provided below.
| Very truly yours, | ||||||
| XXXXXX DE LEEUW & COMPANY IV, L.P.: | ||||||
| By: | MDC Management Company IV, LLC | |||||
| Its General Partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: Managing Member | ||||||
| XXXXXX DE LEEUW & COMPANY IV ASSOCIATES, L.P.: | ||||||
| By: | MDC Management Company IV, LLC | |||||
| Its General Partner | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: Managing Member | ||||||
| DELTA FUND LLC: | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxx, Xx.
|
|||||
| Title: Voting Member | ||||||
Confirmed as of the date first above mentioned:
XXXXXXX XXXXX & ASSOCIATES, INC.
XXXXXXX XXXXX & ASSOCIATES, INC.
By: Name: |
/s/ Xxxxxx X. Xxxxxxx
|
|||
Title:
|
Managing Director – Inv. Banking |
Exhibit A
| Total number of | Maximum Amount of | |||||||
| Units held by the Selling | Units to be sold by the | |||||||
| Name of Selling Unitholder | Unitholder | Selling Unitholder | ||||||
XxXxxx De Leeuw & Company IV, L.P. |
892,102 | 892,102 | ||||||
XxXxxx De Leeuw & Company IV Associates, L.P. |
18,356 | 18,356 | ||||||
Delta Fund LLC |
14,226 | 14,226 | ||||||
