EXHIBIT 2.2
AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF MARCH 22, 1999
BY AND AMONG
U.S. CONCRETE, INC.,
▇▇▇▇▇▇'▇ ACQUISITION INC.,
▇▇▇▇▇▇'▇ CONCRETE, INC.
AND
THE STOCKHOLDERS NAMED HEREIN
Reverse Triangular Merger; Non-Delaware Company; Multiple Stockholders; Company
Financial Statements
AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made
as of March 22, 1999 by and among U.S. Concrete, Inc., a Delaware corporation
("USC"), ▇▇▇▇▇▇'▇ Acquisition Inc., a Delaware corporation and a wholly owned
subsidiary of USC ("USC Sub"), ▇▇▇▇▇▇'▇ Concrete, Inc., a California corporation
(the "Company"), and the persons listed on the signature page hereof under the
caption "Stockholders" (the "Stockholders").
PRELIMINARY STATEMENT
The parties to this Agreement have determined it is in their best
long-term interests to effect a business combination pursuant to which:
(a) USC Sub will merge into the Company on the terms and subject to
the conditions set forth herein (that merger being the "Merger");
(b) USC will acquire the stock of all or some of the entities listed
in the accompanying Addendum 1 (each, other than the Company, an "Other
Founding Company" and, collectively with the Company, the "Founding
Companies") pursuant to agreements that are (i) similar to this Agreement
and (ii) entered into among those entities and their equity owners, USC
and subsidiaries of USC (collectively, the "Other Agreements"); and
(c) USC will effect a public offering of shares of its common stock
and issue and sell those shares.
The respective boards of directors of USC, USC Sub and the Company
have approved and adopted this Agreement to effect a transaction subject to
Section 351 of the Code.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and undertakings this Agreement contains, the
parties hereto hereby agree as follows:
Paragraph 1 CERTAIN DEFINED TERMS. The following terms this
Agreement uses have the meanings this Paragraph 1 specifies. Capitalized terms
this Agreement uses, but this Paragraph 1 does not define, have the meanings the
preamble to this Agreement, the Preliminary Statement above or Article IX of the
Uniform Provisions, as the case may be, specifies.
"Acquired Business" means the Company.
"Acquisition" means the Merger.
"Acquisition Consideration" has the meaning Paragraph 2 specifies.
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"Additional Cash Consideration" means the product of (i) the
quotient obtained from dividing (A) the sum of (i) the amount of cash
Paragraph B of Schedule 2(D) sets forth in dollars and (ii) the 1998
Permitted Restricted Payment Amount by (B) $8.50 multiplied by (ii) the
amount, if any, by which (A) the IPO Price exceeds (B) $8.50.
"Ceiling Amount" means the sum of (i) $25,322,511, (ii) the
Additional Cash Consideration, if any, (iii) the Positive Net Adjustment,
if any, and (iv) the Negative Net Adjustment, if any; provided, however,
that, for purposes of Sections 6.06(b) and 7.06(b), the Ceiling Amount is
$18,991,883.
"CGCL" means the General Corporation Law of the State of California.
"Closing" has the meaning Paragraph 3 specifies.
"Closing Date" means the IPO Pricing Date.
"Company Capital Stock" means the Common Stock, par value $1.00 per
share, of the Company.
"Company Financial Statements" means (i) the audited balance sheets
of the Company as of December 31, 1997 and December 31, 1998 and the
related audited statements of operations, cash flows and shareholders'
equity for each of the years in the three-year period ended December 31,
1998, together with the related audit report of the Independent
Accountants.
"Counsel for the Company and the Stockholders" means Ferrari, Olsen,
▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP.
"Counsel for USC and USC Sub" means ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
"Current Balance Sheet" means the audited balance sheet of the
Company as of December 31, 1998.
"Current Balance Sheet Date" means December 31, 1998.
"Current Balance Sheet Date Working Capital" means ($1,446,000).
"Effective Date" means the IPO Closing Date.
"Executive Employment Agreement" means the Employment Agreement
entered into effective as of the IPO Closing Date between the Company and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"Initial Financial Statements" means the Company Financial
Statements.
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"Minimum Cash Balance" means $25,000.
"Pro Rata Share" of a Stockholder means (1) 71.25% in the case of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (jointly), trustees of the ▇▇▇▇▇▇ Family
Trust and (2) 28.75% in the case of Karob Investment Co., LP.
"Responsible Officer" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"Surviving Corporation" means the Company, which the Certificate of
Merger will designate as the surviving corporation of the Merger.
"Termination Date" means May 31, 1999; provided, however, that if
(i) USC has filed the Registration Statement with the SEC prior to that
date and (ii) the Stockholders would not be entitled to terminate this
Agreement on that date otherwise than pursuant to Section 11.01(a)(ii),
"Termination Date" means September 30, 1999.
"Uniform Provisions" has the meaning Paragraph 4 specifies.
"USC Award Agreements" means the award agreements, each in the form
of Exhibit 1-A, pursuant to which USC, on the Closing Date, will grant to
certain key employees of the Company ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ has designated by
written notice to USC and USC has approved by written notice to the
Responsible Officer (which approval USC will not unreasonably withhold)
prior to the Closing Date, pursuant to the U.S. Concrete, Inc. 1999
Employee Incentive Plan, or other similar stock option plan, options to
purchase an aggregate not to exceed 119,252 shares of USC Common Stock at
a per share exercise price equal to the IPO Price.
"USC Sub Common Stock" means the Common Stock, par value $1.00 per
share, of USC Sub.
"1998 Restricted Payment Amount" means $0.
Paragraph 2 (A) CERTIFICATE OF MERGER. Subject to the terms and
conditions hereof, the Company will cause the Certificate of Merger to be duly
executed and delivered on or promptly after the Closing Date and filed with the
Secretary of State of the State of California and the Secretary of State of the
State of Delaware.
(B) THE EFFECTIVE TIME. The effective time of the Merger (the
"Effective Time") will be the time on the Effective Date which the Certificate
of Merger specifies or, if the Certificate of Merger does not specify another
time, 8:00 a.m., Houston, Texas time, on the Effective Date.
(C) CERTAIN EFFECTS OF THE MERGER. At and as of the Effective Time,
(1) USC Sub will be merged with and into the Company in accordance with the
provisions of the CGCL and the
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DGCL, (2) USC Sub will cease to exist as a separate legal entity, (3) the
articles of incorporation of the Company will be amended to change the Company's
authorized shares of capital stock to 1,000 shares, par value $1.00 per share,
of Common Stock, (4) the Company will be the Surviving Corporation and, as such,
will, all with the effect provided by the CGCL and the DGCL, (a) possess all the
properties and rights, and be subject to all the restrictions and duties, of the
Company and USC Sub and (b) be governed by the laws of the State of California,
(5) the Charter Documents of the Company then in effect (after giving effect to
the amendment to the Company's articles of incorporation specified in clause (3)
of this sentence) will become and thereafter remain (until changed in accordance
with (a) applicable law (in the case of the articles of incorporation) or (b)
their terms (in the case of the bylaws)) the Charter Documents of the Surviving
Corporation, (6) the initial board of directors of the Surviving Corporation
will be the persons Schedule 2(C) names as such, and those persons will hold the
office of director of the Surviving Corporation, subject to the provisions of
the applicable laws of the State of California and the Charter Documents of the
Surviving Corporation, and (7) the initial officers of the Surviving Corporation
will be as Schedule 2(C) sets forth, and each of those persons will serve in
each office Schedule 2(C) specifies for that person, subject to the provisions
of the Charter Documents of the Surviving Corporation, until that person's
successor is duly elected to, and, if necessary, qualified for, that office.
(D) EFFECT OF THE MERGER ON CAPITAL STOCK. As of the Effective Time,
as a result of the Merger and without any action on the part of any holder
thereof:
(1) the shares of Company Capital Stock issued and outstanding
immediately prior to the Effective Time will (a) convert into the right to
receive, subject to the provisions of Paragraph 2(E), without interest, on
surrender of the certificates evidencing those shares, the amount of cash
and the number of whole and fractional shares of USC Common Stock Schedule
2(D) sets forth and, if any, the Additional Cash Consideration (the
"Acquisition Consideration"), (b) cease to be outstanding and to exist and
(c) be canceled and retired;
(2) each share of Company Capital Stock held in the treasury of the
Company or any Company Subsidiary will (a) cease to be outstanding and to
exist and (b) be canceled and retired; and
(3) each share of USC Sub Common Stock issued and outstanding
immediately prior to the Effective Time will convert into one share of
Common Stock, par value $1.00 per share, of the Surviving Corporation and
the shares of Common Stock of the Surviving Corporation issued on that
conversion will constitute all the issued and outstanding shares of
Capital Stock of the Surviving Corporation.
Each holder of a certificate representing shares of Company Capital Stock
immediately prior to the Effective Time will, as of the Effective Time and
thereafter, cease to have any rights respecting those shares other than the
right to receive, subject to the provisions of Paragraph 2(E), without interest,
the Acquisition Consideration and the additional cash, if any, owing with
respect to those shares as provided in Paragraph 2(F).
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(E) DELIVERY, EXCHANGE AND PAYMENT. (1) At or after the Effective
Time: (a) the Stockholders, as holders of certificates representing shares of
Company Capital Stock, will, on surrender of those certificates to USC (or any
agent that USC may appoint for purposes of this Paragraph 2(E)), receive,
subject to the provisions of this Paragraph 2(E) and Paragraph 2(F), the
Acquisition Consideration; and (b) until any certificate representing Company
Capital Stock has been surrendered and replaced pursuant to this Paragraph 2(E),
that certificate will, for all purposes, be deemed to evidence ownership of the
number of whole shares of USC Common Stock included in the Acquisition
Consideration payable in respect of that certificate pursuant to Paragraph 2(D).
All shares of USC Common Stock issuable in the Merger will be deemed for all
purposes to have been issued by USC at the Effective Time.
(2) Each Stockholder will deliver to USC (or any agent that USC may
appoint for purposes of this Paragraph 2(E)) on or before the IPO Closing Date
the certificates representing all the Company Capital Stock owned by that
Stockholder, duly endorsed in blank, or accompanied by stock powers in blank
duly executed, by that Person, and with all necessary transfer tax and other
revenue stamps, acquired at that Person's expense, affixed and canceled. Each
Stockholder will cure any deficiencies in the endorsement of the certificates or
other documents of conveyance respecting, or in the stock powers accompanying,
the certificates representing Company Capital Stock that Person delivers.
(3) No dividends (or interest) or other distributions declared or
earned after the Effective Time with respect to USC Common Stock and payable to
the holders of record thereof after the Effective Time will be paid to the
holder of any unsurrendered certificates representing shares of Company Capital
Stock for which whole shares of USC Common Stock have been issued in the Merger
until those certificates are surrendered as provided herein, but (a) on that
surrender USC will cause to be paid, to the Person in whose name the
certificates representing those whole shares of USC Common Stock will then be
issued, the amount of dividends or other distributions previously paid with
respect to those whole shares of USC Common Stock with a record date, or which
have accrued, subsequent to the Effective Time, but prior to that surrender, and
the amount of any cash payable to that Person for and in lieu of fractional
shares pursuant to Paragraph 2(F) and (b) at the appropriate payment date or as
soon as practicable thereafter, USC will cause to be paid to that Person the
amount of dividends or other distributions with a record date, or which have
been accrued, subsequent to the Effective Time, but which are not payable until
a date subsequent to surrender, which are payable with respect to those whole
shares of USC Common Stock, subject in all cases to any applicable escheat laws.
No interest will be payable with respect to the payment of those dividends or
other distributions or cash for and in lieu of fractional shares on surrender of
outstanding certificates.
(F) Notwithstanding any other provision herein, USC will not issue
any fractional shares of USC Common Stock, and if a Stockholder would be
entitled hereunder to receive a fractional share of USC Common Stock but for
this Paragraph 2(F), that Stockholder will be entitled hereunder to receive a
cash payment for and in lieu thereof in the amount (rounded upward to the
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nearest whole cent) equal to that Stockholder's fractional interest in a share
of USC Common Stock multiplied by the IPO Price.
Paragraph 3 THE CLOSING. On or before the Closing Date, the parties
hereto will take all actions necessary to (A) effect the Acquisition (including,
as permitted by the CGCL and the DGCL, (i) the execution of a Certificate of
Merger (a) meeting the requirements of the CGCL and the DGCL and (b) providing
that the Merger will become effective on the Effective Date and (ii) the
transmitting for filing of that Certificate of Merger with the Secretary of
State of the State of California and the Secretary of State of the State of
Delaware), (B) verify the existence and ownership of the certificates evidencing
the Company Capital Stock to be exchanged for the Acquisition Consideration
pursuant to Paragraph 2(E) and (C) satisfy the document delivery requirements on
which the obligations of the parties to effect the Acquisition and the other
transactions contemplated hereby are conditioned by the provisions of Article V
(all those actions collectively being the "Closing"). The Closing will take
place at the offices of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ at 10:00 a.m., Houston time, on the Closing Date, or at such
later time on the Closing Date as USC specifies by written notice to the
Responsible Officer. The actions taken at the Closing will not include the
delivery of the Company Capital Stock to USC or the payment of the Acquisition
Consideration to the Stockholders. Instead, on the IPO Closing Date, the Company
Capital Stock will be surrendered in exchange for the Acquisition Consideration
(with the cash portion of the Acquisition Consideration being paid by wire
transfer pursuant to instructions the Stockholders deliver to USC prior to
Closing or, in the absence of those instructions, a USC check), and all
transactions contemplated by this Agreement to be closed or completed on or
before the IPO Closing Date will be closed and completed, as the case may be.
Paragraph 4 INCORPORATION OF UNIFORM PROVISIONS. (A) The U.S.
Concrete, Inc. Uniform Provisions for the Acquisition of Founding Companies
attached hereto as Annex 1 (the "Uniform Provisions") hereby are incorporated in
this Agreement by this reference and constitute a part of this Agreement with
the same force and effect as if set forth at length herein.
(B) The Uniform Provisions are hereby amended by adding a Section
1.08 which reads in its entirety as follows:
SECTION 1.08 TRUSTS.
(a) Schedule 1.08 sets forth the legal name of each
Stockholder that is a trustee (the "Trustees"), the name of the
trust over which that Trustee serves (each a "Trust"), the state or
other jurisdiction which governs that Trustee's duties with respect
to that Trust, and the name of each beneficiary of that Trust (the
"Beneficiaries").
(b) There has not been any challenge to (i) the authority,
appointment or capacity of any Trustee to serve as such over the
applicable Trust or (ii) the validity of any Trust.
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(c) Full and complete copies of all documents under which each
Trust was created and all documents otherwise pertaining to each
Trust or the duties and obligations of each Trustee serving over
each Trust and all amendments, supplements or modifications thereto
have been provided to USC.
(d) The Trustees set forth opposite the name of each Trust on
Schedule 1.08 are the sole Trustees of that Trust and each Trustee
listed is a duly acting and qualified trustee of that Trust. Each of
the Trustees has all requisite power and authority to execute and
deliver each Transaction Document, to consummate the transactions
contemplated thereby and to perform all the terms and conditions
thereof to be performed by that Trustee.
(e) No notice is required to be given to and no consent or
joinder is required to be acquired from any Beneficiary in
connection with the Transaction Documents or any of the transactions
contemplated thereby and no objection has been received from any
Beneficiary relating to the Transaction Documents or any of the
transactions contemplated thereby.
(C) Section 2.23(vi) is hereby amended by replacing "$25,000" with
"$50,000."
(D) Section 6.07 is hereby amended by deleting the definition of
"Current Balance Sheet Date Adjusted Working Capital" contained therein and
replacing it with the following:
"Current Balance Sheet Date Adjusted Working Capital" means
the amount by which (i) the Current Balance Sheet Date Working
Capital exceeds (ii) the sum of (A) the Current Balance Sheet Excess
Cash, (B) the 1998 Restricted Payment Amount and (C) $976,000.
(E) Notwithstanding the provisions of Section 10.07, Article VIII
and the rights and obligations thereunder of the parties thereto will be
governed by and construed in accordance with the substantive laws of the State
of California without regard to the conflicts of law provisions thereof.
Paragraph 5 CERTAIN CONDITIONS TO CLOSING AND CONSUMMATION. (A) The
obligations of the Stockholders with respect to the actions to be taken on the
IPO Closing Date are subject to the satisfaction of the following condition in
addition to those set forth or referred to in Section 5.02(b): (i) the Executive
Employment Agreement then will be in full force and effect and (ii) USC shall
have tendered the USC Award Agreements to the respective recipients thereof,
duly signed on its behalf by an authorized officer of USC.
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(B) The obligations of USC and USC Sub with respect to the actions
to be taken on the IPO Closing Date are subject to the satisfaction of the
following condition in addition to those set forth or referred to in Section
5.03(b): the Executive Employment Agreement then will be in full force and
effect.
Paragraph 6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be an original, but all of which together will
constitute one and the same agreement.
Paragraph 7 NOTICES. For purposes of Section 10.06, notices will be
initially addressed to the Stockholders and the Company, as follows:
(A) if to a Stockholder, addressed to that Stockholder, in care of:
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
; and
(B) if to the Company, addressed to it at:
▇▇▇▇▇▇'▇ Concrete Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with copies (which will not constitute notice for purposes of this
Agreement) to:
Ferrari, Olsen, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Paragraph 8 ABANDONMENT OF MERGER. If this Agreement is terminated
pursuant to Section 11.01, the Merger will be deemed for all purposes to have
been abandoned and of no force or effect and, if the Certificate of Merger has
been filed with the Secretary of State of the Company's Organization State prior
to that termination, each of the Company and USC Sub is authorized to execute
and file with the Secretary of State of the Company's Organization State a
certificate of that termination pursuant to Section 110 of the CGCL.
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[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
U.S. CONCRETE, INC.
By:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
▇▇▇▇▇▇'▇ ACQUISITION INC.
By:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇'▇ CONCRETE, INC.
By:________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Stockholders:
___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, co-trustee of the
▇▇▇▇▇▇ Family Trust
___________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, co-trustee of the
▇▇▇▇▇▇ Family Trust
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Karob Investment Co., LP.
By:_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, general partner
Karob Investment Co., LP.
By:________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇, general partner
Each of the undersigned hereby joins in the execution of this Agreement
individually to be bound as if the undersigned was a Stockholder individually
for the purposes of Article VIII.
___________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
ADDENDUM 1
to the
Agreement and Plan of Reorganization
to which
U.S. Concrete, Inc.
and
▇▇▇▇▇▇'▇ Concrete, Inc.
are parties
A. Capitalized terms this Addendum uses, but does not define, have the
meanings the captioned Agreement specifies.
B. The Founding Companies are:
▇▇▇▇ Concrete, Incorporated
Bay Cities Building Materials Co., Inc.
Central Concrete Supply Co., Inc.
Opportunity Concrete Corporation
▇.▇. ▇▇▇▇▇/Associates d/b/a Santa ▇▇▇▇ Cast Products Co.
▇▇▇▇▇▇'▇ Concrete, Inc.
SCHEDULE 2(C)
to the
Agreement and Plan of Reorganization
to which
U.S. Concrete, Inc.
and
▇▇▇▇▇▇'▇ Concrete, Inc.
are parties
A. Capitalized terms this Schedule uses, but does not define, have
the meanings the captioned Agreement specifies.
B. The directors of the Surviving Corporation immediately after the
Effective Time are as follows: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
C. The officers of the Surviving Corporation immediately after the
Effective Time are as follows:
President ................................. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President...................... ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President, Treasurer and Secretary.... ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
End of Schedule
SCHEDULE 2(D)
to the
Agreement and Plan of Reorganization
to which
U.S. Concrete, Inc.
and
▇▇▇▇▇▇'▇ Concrete, Inc.
are parties
A. Capitalized terms this Schedule uses, but does not define, have
the meanings the captioned Agreement specifies.
B. Subject to increase by the amount of the Positive Net Adjustment,
if any, and to decrease by the amount of the Negative Net Adjustment, if any,
the aggregate Acquisition Consideration will be comprised of (1) $6,330,628 in
cash, (2) 2,234,339 shares of USC Common Stock and (3) the Additional Cash
Consideration.
C. Each Stockholder will be entitled to receive that Stockholder's
Pro Rata Share of the Acquisition Consideration pursuant to Paragraph 2(D),
subject to the provisions of Paragraphs 2(E) and 2(F).
End of Schedule
