STOCK TENDER AND VOTING AGREEMENT (CIC MSRG)
Exhibit 99.5
STOCK TENDER AND VOTING AGREEMENT
(CIC MSRG)
(CIC MSRG)
STOCK TENDER AND VOTING AGREEMENT dated as of May19, 2006 (this “Agreement”), by and
among Briad Main Street, Inc., a Nevada corporation (“Parent”), Main Street Acquisition
Corporation, a Delaware corporation and wholly owned subsidiary of Parent (“Purchaser”),
and the persons listed on attached Schedule 1 (each a “Stockholder,” and
collectively, the “Stockholders”).
Recitals
WHEREAS, simultaneously with the execution and delivery of this Agreement, Parent, Purchaser,
and Main Street Restaurant Group, Inc., a Delaware corporation (the “Company”), have
entered into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended
from time to time, the “Merger Agreement”), pursuant to which (a) Purchaser will make a
cash tender offer for all of the outstanding shares of the Company’s common stock, par value $0.001
per share (the “Common Stock”), subject to the terms and conditions of the Merger Agreement
(such offer as it may be amended from time to time as permitted under the Merger Agreement, the
“Offer”), and (b) Purchaser will be merged with and into the Company (the
“Merger”);
WHEREAS, as an inducement and a condition to Parent entering into the Merger Agreement,
pursuant to which the Stockholders will receive the consideration provided for in the Merger
Agreement upon conversion of the shares of Common Stock owned by the Stockholders, each Stockholder
has agreed to enter into this Agreement; and
WHEREAS, capitalized terms used in this Agreement and not otherwise defined shall have the
same meanings in this Agreement as in the Merger Agreement.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt, sufficiency, and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Tender of Shares.
(a) Provided that the Offer is not amended in a manner prohibited by the Merger Agreement,
each Stockholder severally agrees to validly tender, pursuant to and in accordance with the terms
of the Offer, not later than the close of business on the tenth (10th) calendar day
after the Offer commences, all shares of Common Stock owned by such Stockholder as of the date of
this Agreement and any shares of Common Stock hereafter acquired by such Stockholder (all such
shares owned as of the date hereof and all such shares hereafter acquired, the “Shares”)
and not to withdraw such tender. Each Stockholder hereby severally acknowledges and agrees that
Purchaser’s obligation to accept for payment and pay for the Shares is subject to the terms and
conditions of the Offer and the Merger Agreement.
(b) Each Stockholder hereby severally agrees to permit Purchaser to publish and disclose in
the Offer Documents (and any other press release or announcement that
may be
issued in accordance with the terms of the Merger Agreement) and, if approval of the
stockholders of the Company is sought or given under applicable law, the Proxy Statement (including
all documents and schedules filed with the SEC), such Stockholder’s identity and intent with
respect to the Shares and the nature of such Stockholder’s commitments, arrangements, and
understandings under this Agreement.
2. Provisions Concerning Common Stock.
(a) Agreement to Vote. Each Stockholder hereby severally covenants and agrees that,
during the period commencing on the date of this Agreement and continuing until the earlier of (i)
the termination of the Merger Agreement and (ii) the Effective Time (such period, the “Voting
Period”), at any meeting of the holders of the Common Stock of the Company, however called, and
at any adjournment thereof, and in connection with any written consent, vote, or approval of the
holders of any Common Stock, such Stockholder shall vote or give a written consent of (or cause to
be voted or written consent to be given) all of his, her, or its Shares, now or hereafter acquired
(the “Stockholder’s Shares”) (A) in favor of the Merger and the adoption and approval of
the Merger Agreement, the terms thereof, the transactions contemplated thereby, and any actions
required or reasonably requested by Parent in furtherance thereof, (B) against any action,
transaction, or agreement that would result in a breach in any material respect of any covenant or
agreement of the Company under the Merger Agreement, and (C) against any Acquisition Proposal other
than the Merger and against any proposed action or transaction that could reasonably be expected to
impede, frustrate, nullify, prevent or materially delay consummation of the Merger or is otherwise
in any material respect inconsistent therewith. Each Stockholder by this Agreement agrees that
such Stockholder shall not enter into any voting or other agreement or understanding with any
person the effect of which would be to violate the provisions, covenants, and agreements contained
in this Section 2.
(b) Grant of Irrevocable Proxy. Each Stockholder hereby severally and irrevocably
grants to, and appoints, Purchaser and any designee of Purchaser, and each of them individually,
such Stockholder’s proxy and attorney-in-fact, with full power of substitution and resubstitution,
for and in the name, place, and stead of such Stockholder, to vote or act by written consent during
the Voting Period with respect to such Stockholder’s Shares in accordance with Section 2(a). This
proxy is given to secure the performance of the duties of each Stockholder under this Agreement.
Each Stockholder affirms that this proxy is coupled with an interest and shall be irrevocable
during the Voting Period. Each Stockholder shall severally take such further action or execute
such other instruments as may be necessary or reasonably requested by Parent to effectuate the
intent of this proxy. THE AUTHORITY GRANTED HEREUNDER SHALL BE (I) IRREVOCABLE DURING THE VOTING
PERIOD, AND (II) DEEMED TO BE COUPLED WITH AN INTEREST SUFFICIENT IN LAW AS REQUIRED BY SECTION 212
OF THE DGCL.
(c) Other Proxies Revoked. Each Stockholder severally represents and warrants that
any proxies heretofore given in respect of such Stockholder’s Shares are not irrevocable, and that
all such proxies have been or are hereby revoked.
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3. Option Shares.
(a) Subject to the terms and conditions set forth in this Agreement, each Stockholder hereby
severally grants to Parent an option (each, an “Option,” and collectively, the
“Options”) to purchase, in whole but not in part, such Stockholder’s Shares at a purchase
price per share equal to the Merger Price in cash.
(b) Parent may exercise an Option, in whole but not in part, at any time and from time to
time, if and only if such Stockholder shall have breached Section 1 or Section 2 of this Agreement.
If an Option becomes exercisable, such Option may be exercised at any time prior to December 31,
2006.
(c) In the event that Parent wishes to exercise an Option, it shall send to the Stockholder
who granted such Option a written notice (the date of which is referred to as the “Notice
Date”) to that effect which notice shall also specify a date not earlier than three (3)
business days nor later than ten (10) business days from the Notice Date for the closing of such
purchase (the “Option Closing Date”); provided, however, that (i) if the closing of the
purchase and sale pursuant to such Option (an “Option Closing”) cannot be consummated by
reason of any applicable judgment, decree, order, law, or regulation, the period of time that
otherwise would run pursuant to this sentence shall run instead from the date on which such
restriction on consummation has expired or been terminated and (ii) without limiting the foregoing,
if prior notification to or approval of any Governmental Entity is required in connection with such
purchase or any other transaction contemplated hereby, Parent and such Stockholder shall promptly
file the required notice or application for approval and shall cooperate in the expeditious filing
of such notice or application, and, in the case of any prior notification or approval required in
connection with such purchase, the period of time that otherwise would run pursuant to this
sentence shall run instead from the date on which, as the case may be, (A) any required
notification period has expired or been terminated or (B) any required approval has been obtained,
and in either event, any requisite waiting period has expired or been terminated. The place of the
Option Closings shall be at the offices of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, 000 Xxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as the parties may agree.
(d) At each Option Closing, Parent (or its designee) shall pay to the Stockholder an amount
equal to the product of (i) the Merger Price and (ii) the number of such Stockholder’s Shares
subject to purchase pursuant to such Stockholder’s Option. Such payment shall be in immediately
available funds by wire transfer to a bank account designated in writing by such Stockholder.
(e) Parent hereby represents that the shares of capital stock purchased by Parent pursuant to
the Options will be acquired for investment only and not with a view to any public distribution
thereof, and Parent shall not offer to sell or otherwise dispose of any shares so acquired by it in
violation of the registration requirements of the Securities Act.
(f) At each Option Closing, simultaneously with the delivery of the amount specified in
Section 3(d), each Stockholder shall severally deliver to Parent (or its designee) a certificate or
certificates representing such Stockholder’s Shares to be purchased at the Option
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Closing duly endorsed or with executed blank stock power attached, all of which shares of such
Stockholder’s Shares shall be free and clear of all liens, claims, charges, and encumbrances of any
kind whatsoever, except for such encumbrances or proxies in favor of Parent arising under this
Agreement.
4. Representations and Warranties of Each Stockholder. Each Stockholder hereby
severally, and not jointly, represents and warrants to Parent and Purchaser (as to such
Stockholder) as follows:
(a) Authority. Such Stockholder has all necessary legal capacity, power, and
authority to execute and deliver this Agreement and to consummate the transactions contemplated by
this Agreement. The execution and delivery of this Agreement by such Stockholder and the
consummation of the transactions contemplated by this Agreement have been duly authorized by all
necessary action on the part of such Stockholder and, assuming the due authorization, execution,
and delivery of this Agreement by Parent and Purchaser, this Agreement constitutes a legal, valid,
and binding obligation of such Stockholder, enforceable against such Stockholder in accordance with
its terms, except as such enforceability may be limited by bankruptcy, reorganization, fraudulent
conveyance, insolvency, moratorium, or similar laws affecting the rights and remedies of creditors
generally and by equitable principles of general application (regardless of whether such
enforceability is considered in a proceeding at law or in equity).
(b) Ownership of the Shares. Such Stockholder is the record and beneficial owner of,
and has good and marketable title to, such Stockholder’s Shares listed beside such Stockholder’s
name on Schedule 1 attached hereto, free and clear of all claims, liens, encumbrances and
security interests of any nature whatsoever, and such Stockholder does not own, of record or
beneficially, any shares of capital stock of the Company other than the Stockholder’s Shares
subject to this Agreement. Such Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 1, 2 and 3, sole power of
disposition, and sole power to agree to all of the matters set forth in this Agreement, in each
case with respect to all of such Stockholder’s Shares, with no material limitations,
qualifications, or restrictions on such rights, subject only to applicable securities laws and the
terms of this Agreement.
(c) Consents and Approvals; No Violation. (i) Except as may be required by the
Exchange Act or the HSR Act, no filing with, and no permit, authorization, consent, or approval of,
any Governmental Entity is necessary for the execution of this Agreement by such Stockholder and
the consummation by such Stockholder of the transactions contemplated by this Agreement and (ii)
none of the execution and delivery of this Agreement by such Stockholder, the consummation by such
Stockholder of the transactions contemplated by this Agreement or compliance by such Stockholder
with any of the provisions of this Agreement shall (A) conflict with or result in any breach of any
applicable documents to which such Stockholder is a party, (B) result in a violation or breach of,
or constitute (with or without notice or lapse of time, or both) a default (or give rise to any
third party right of termination, cancellation, amendment, or acceleration) under any of the terms,
conditions, or provisions of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement, or other
instrument or obligation of any kind to which such Stockholder is a party, or (C) violate any
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order, writ, injunction, decree, judgment, statute, rule, or regulation applicable to such
Stockholder, except in each case where the absence of filing or authorization, conflict, violation,
breach, or default would not materially impair the ability of such Stockholder to consummate the
transactions contemplated by this Agreement.
(d) No Finder’s Fees. Except as disclosed pursuant to the Merger Agreement, no
broker, investment banker, financial advisor, or other person is entitled to any broker’s,
finder’s, financial advisor’s, or other similar fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or on behalf of such
Stockholder.
5. Representations and Warranties of Parent and Purchaser. Parent and Purchaser
hereby represent and warrant to each Stockholder as of the date of this Agreement as follows:
(a) Organization. Each of Parent and Purchaser is a corporation duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its incorporation.
(b) Corporate Authorization; Validity of Agreement; Necessary Action. Each of Parent
and Purchaser has all corporate power and authority necessary to execute and deliver this Agreement
and to consummate the transactions contemplated by this Agreement. The execution and delivery by
Parent and Purchaser of this Agreement and the consummation by Parent and Purchaser of the
transactions contemplated by this Agreement have been duly authorized by all necessary action on
the part of Parent and Purchaser, and, assuming the due authorization, execution, and delivery of
this Agreement by the Stockholders, this Agreement constitutes a legal, valid, and binding
obligation of Parent and Purchaser, enforceable against them in accordance with its terms, except
as such enforceability may be limited by bankruptcy, reorganization, fraudulent conveyance,
insolvency, moratorium, or similar laws affecting the rights and remedies of creditors generally
and by equitable principles of general application (regardless of whether such enforceability is
considered in a proceeding at law or in equity).
(c) Consents and Approvals; No Violation. Neither the execution nor delivery of this
Agreement by Parent or Purchaser nor the consummation by Parent or Purchaser of the transactions
contemplated by this Agreement nor compliance by Parent or Purchaser with any of the provisions of
this Agreement shall (i) conflict with or result in any breach of any provision of the articles or
certificates of incorporation, bylaws, or similar governing documents of Parent or Purchaser, (ii)
except as may be required by the Exchange Act or the HSR Act, require any filing with, or permit,
authorization, consent, or approval of, any Governmental Entity (except where the failure to obtain
such permits, authorizations, consents, or approvals or to make such filings would not materially
impair the ability of Parent or Purchaser to consummate the transactions contemplated by this
Agreement), (iii) result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination, amendment,
cancellation, or acceleration) under any of the terms, conditions, or provisions of any note, bond,
mortgage, indenture, guarantee, other evidence of
indebtedness, lease, license, contract, agreement, or other instrument or obligation to which
Parent or Purchaser is a party or by which they or any of their properties or assets may be bound,
or (iv) violate any order, writ, injunction, decree, judgment, statute, rule, or regulation
applicable
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to Parent or Purchaser or any of their properties or assets, except in the case of
clauses (iii) and (iv) for violations, breaches or defaults, or rights of termination, amendment,
cancellation, or acceleration that would not materially impair the ability of Parent or Purchaser
to consummate the transactions contemplated by this Agreement.
6. Covenants of Each Stockholder. Each Stockholder severally covenants and agrees as
follows:
(a) Restriction on Transfer, Proxies, and Non-Interference. Except as contemplated by
this Agreement or the Merger Agreement, such Stockholder shall not (i) directly or indirectly,
offer for sale, sell, transfer, tender, pledge, encumber, assign, or otherwise dispose of, or enter
into any contract, option, or other arrangement or understanding with respect to, or consent to the
offer for sale, transfer, tender, pledge, encumbrance, assignment, or other disposition of, any or
all of such Stockholder’s Shares; (ii) grant any proxies or powers of attorney, deposit any of such
Stockholder’s Shares into a voting trust or enter into a voting agreement with respect to any of
such Stockholder’s Shares; or (iii) take any action that would make any representation or warranty
of such Stockholder contained in this Agreement untrue or incorrect in any material respect or have
the effect of preventing or disabling or delaying such Stockholder from performing such
Stockholder’s obligations under this Agreement.
(b) Stop Transfer; Changes in Subject Shares. Such Stockholder agrees with, and
covenants to, Parent and Purchaser that (i) this Agreement and the obligations hereunder shall
attach to such Stockholder’s Shares and shall be binding upon any person or entity to which legal
or beneficial ownership shall pass, whether by operation of law or otherwise, (ii) upon the request
of Parent such Stockholder shall deliver certificates representing the Stockholder’s Shares to be
legended to the effect that such Shares are subject to this Agreement, and (iii) such Stockholder
shall not request that the Company register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any or all of such Stockholder’s Shares, unless
such transfer is made in compliance with this Agreement.
(c) Dissenter’s Rights. Such Stockholder agrees not to exercise any dissenter’s
rights (including, without limitation, under Section 262 of the DGCL) that may arise with respect
to the Merger.
7. Fiduciary Duties. Each Stockholder signs this agreement solely in such
Stockholder’s capacity as an owner of such Stockholder’s Shares and no person executing this
Agreement who is during the term of this Agreement a director or officer of the Company makes any
agreement or understanding in this Agreement in his or her capacity as director or officer.
Notwithstanding anything in this Agreement to the contrary, the covenants and agreements set forth
in this Agreement shall not prevent the Stockholder or any of such Stockholder’s designees serving
on the Company’s Board of Directors or as any officer or employee of the Company from taking any
action while acting in the capacity of a director, officer, or employee of the Company in
satisfying such Stockholder’s fiduciary duties solely with respect to such capacity.
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8. Miscellaneous.
(a) Further Assurances. From time to time, at any other party’s reasonable
request and without further consideration, each party shall execute and deliver such additional
documents and take all such further lawful action as may be necessary or reasonably requested to
consummate and make effective the transactions contemplated by this Agreement.
(b) Entire Agreement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter of this Agreement and supersedes all other prior
agreements and understandings, both written and oral, between the parties with respect to the
subject matter of this Agreement.
(c) Assignment. This Agreement shall not be assigned by operation of law or otherwise
without the prior written consent of the other parties.
(d) Amendments and Waivers. This Agreement may not be amended, changed, supplemented,
waived, or otherwise modified or terminated, except upon the execution and delivery of a written
agreement executed by all of the relevant parties.
(e) 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 received if
so given) by hand delivery, telegram, telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications under this Agreement shall be delivered to the respective
parties at the following addresses:
If to the Stockholders: At the address set forth beside each Stockholder’s name listed on
Schedule 1.
with copies to:
Main Street Restaurant Group, Inc.
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
0000 X. 00xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
and to:
Xxxxxxxxx Xxxxxxx, LLP
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
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If to Parent or Purchaser:
BR Main Street, Inc.
c/o The Briad Group
00 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx
c/o The Briad Group
00 Xxxxx Xxxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxxx
with copies to:
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
or to such other address as the person to whom notice is given may have previously furnished to the
others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of any provision of
this Agreement will be interpreted in such manner as to be effective and valid under applicable law
but if any provision or portion of any provision of this Agreement is held to be invalid, illegal,
or unenforceable in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality, or unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed, construed, and enforced in
such jurisdiction as if such invalid, illegal, or unenforceable provision or portion of any
provision had never been contained in this Agreement.
(g) Specific Performance. Each of the parties recognizes and acknowledges that a
breach by it of any covenants or agreements contained in this Agreement will cause the other
parties to sustain damages for which they would not have an adequate remedy at law for money
damages, and therefore each of the parties agrees that, in the event of any such breach, the
aggrieved party shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other remedy to which it
may be entitled at law or in equity.
(h) Remedies Cumulative. All rights, powers, and remedies provided under this
Agreement or otherwise available in respect of this Agreement at law or in equity shall be
cumulative and not alternative, and the exercise of any thereof by any party shall not preclude the
simultaneous or later exercise of any other such right, power, or remedy by such party.
(i) No Waiver. The failure of any party to exercise any right, power, or remedy
provided under this Agreement or otherwise available in respect of this Agreement at law or in
equity, or to insist upon compliance by any other party with its obligations under this
Agreement, and any custom or practice of the parties at variance with the terms of this
Agreement shall not constitute a waiver by such party of its right to exercise any such or other
right, power, or remedy or to demand such compliance.
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(j) No Third Party Beneficiaries. This Agreement is not intended to be for the
benefit of, and shall not be enforceable by, any person who or which is not a party to this
Agreement.
(k) Governing Law. This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the internal laws of the State of Delaware without
regard to principles of conflicts of law.
(l) Descriptive Headings. The descriptive headings used in this Agreement are
inserted for convenience of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in two or more counterparts, each of
which when executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier shall be effective as delivery of a manually executed counterpart of
this Agreement.
9. Termination. This Agreement and the covenants and agreements set
forth in this Agreement shall terminate upon the earlier to occur of (a) any termination of the
Merger Agreement, and (b) the Effective Time.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Parent, Purchaser, and each Stockholder have caused this Stock Tender and
Voting Agreement to be duly executed as of the day and year first above written.
| BRIAD MAIN STREET, INC., a Nevada corporation |
||||||
| By: /s/ Xxxxxxxx X. Xxxxxxxxx | ||||||
| Name: Xxxxxxxx X. Xxxxxxxxx | ||||||
| Title: President | ||||||
| MAIN STREET ACQUISITION CORPORATION, a Delaware corporation |
||||||
| By: /s/ Xxxxxxxx X. Xxxxxxxxx | ||||||
| Name: Xxxxxxxx X. Xxxxxxxxx | ||||||
| Title: President | ||||||
| CIC MSRG LP | ||||||
| By: CIC Partners GP LLC | ||||||
| Its: General Partner | ||||||
| By: /s/ Xxxxxxx X. Xxxxxxxx | ||||||
| Name: | Xxxxxxx X. Xxxxxxxx | |||||
| Its: | Manager | |||||
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SCHEDULE 1
| Number of Shares | ||||
| Name and Address of Stockholder | of Common Stock | |||
CIC MSRG LP
|
2,325,581 | |||
000 Xxxxxxxx Xxxxx |
||||
Xxxxx 000 |
||||
Xxxxxx, XX 00000 |
||||
