CONTRIBUTION AND SUBSCRIPTION AGREEMENT
Exhibit 3
EXECUTION VERSION
This CONTRIBUTION AND SUBSCRIPTION AGREEMENT (this “Agreement”), dated as of August
16, 2010, by and among Ivy Holdings Inc., a Delaware corporation (“Parent”), and the
investors listed on Schedule I hereto, as amended from time to time (each an
“Investor”, and collectively together with any additional Investor that becomes a party
hereto in accordance with this Agreement, the “Investors”), and shall be effective as of
the Effective Time (as defined below). Parent and the Investors are sometimes individually
referred to herein as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, concurrently with the execution of this Agreement, the Company, Ivy Merger Sub Corp.,
an indirect, wholly-owned subsidiary of the Parent (the “Buyer”), and Prospect Medical
Holdings, Inc., a Delaware corporation (the “Company”), are entering into an Agreement and
Plan of Merger (the “Merger Agreement”), dated as of the date hereof, pursuant to which
Buyer will merge with and into the Company and the Company will survive such merger as a wholly
owned subsidiary of Parent on the terms and conditions set forth in the Merger Agreement (the
“Transaction”);
WHEREAS, concurrently with the execution of this Agreement, each of the Investors has entered
into a Company Stockholder Voting Agreement (the “Voting Agreement”), pursuant to which the
Investors have agreed to vote their Shares (as defined therein) in favor of the Transaction on the
terms and conditions set forth in the Voting Agreement;
WHEREAS, each of the Investors desires to (i) contribute such number of shares of common stock
of the Company, par value $.01 per share (the “Contributed Shares”), owned by such Investor
and/or (ii) contribute such amount of cash (the “Contributed Amount” and together with the
Contributed Shares, the “Rollover Common Value”), in a tax free exchange pursuant to
Section 351 of the Internal Revenue Code for shares of Parent Common Stock (as defined hereafter),
each as set forth in Schedule I hereto;
WHEREAS, each of the Investors shall be issued in exchange for its Rollover Common Value that
number of shares in Parent, par value $0.01 (the “Parent Common Stock”), as is set forth on
Schedule I hereto (the “Exchange Equity”), pursuant to the terms and subject to the
conditions of this Agreement;
WHEREAS, Green Equity Investors V, L.P., a Delaware limited partnership and Green Equity
Investors Side V, L.P., a Delaware limited partnership (collectively, “LGP”) concurrently
with and as an express condition to the contributions by the Investors contemplated hereby shall
make an equity contribution to Parent in exchange for shares of Parent Common Stock and shares of
Cumulative Preferred Stock, par value $0.01, of Parent (the “Preferred Stock”), which
Preferred Stock shall have the terms substantially, in all material respects, as set forth on
Exhibit A attached hereto; and
WHEREAS, in connection with the consummation of the transactions contemplated by this
Agreement and the Merger Agreement, Parent, each Investor and certain
other persons will enter into a stockholders agreement substantially in the form of
Exhibit B attached hereto (the “Stockholders Agreement”).
AGREEMENT
NOW, THEREFORE, as a material inducement of the Parent to consummate (and to cause Merger Sub
to consummate) the Transaction in accordance with the terms and conditions of the Merger Agreement
and in consideration of the mutual agreements contained herein and in reliance on the
representations and warranties herein and for other good and valuable consideration the receipt of
which is hereby acknowledged, and intending to be legally bound hereby, the Parties agree as
follows:
| I. | ROLLOVER. |
1.1 Definitions. Capitalized terms used but not herein defined shall have the
meanings ascribed to them in the Merger Agreement.
1.2 Effective Time. The consummation of the transactions contemplated by this
Agreement, shall be deemed to occur immediately prior to the Effective Time. Each of the Parties
hereby irrevocably agrees to consummate the exchange of the Rollover Common Value for the Exchange
Equity pursuant to Section 1.3 immediately prior to the Effective Time and concurrently
with LGP’s contribution of equity to Parent in exchange for Parent Common Stock and Preferred
Stock.
1.3 Contribution; Exchange of Securities. Subject to the terms and conditions of this
Agreement, immediately prior to the Effective Time, each Investor shall contribute to Parent, free
and clear of all liens and encumbrances (other than any liens or encumbrances created or expressly
permitted by Parent), the Contributed Shares and/or the Contributed Amount, as applicable, and
shall deliver to Parent any documents and instruments as reasonably may be necessary or appropriate
to vest in Parent good and marketable title in and to such Contributed Shares. In exchange for
(and conditioned upon) (i) such Investor’s contribution of its Contributed Shares and/or
Contributed Amount to Parent, as applicable, and (ii) the execution and delivery by such Investor
of a counterpart to the Stockholders Agreement, Parent shall issue to such Investor, free and clear
of all liens and encumbrances (other than liens or encumbrances created by such Investor or
pursuant to an agreement between such Investor and Parent (including, without limitation, the
Stockholders Agreement)), that number of shares of Parent Common Stock as set forth in
Schedule I hereto. For purposes hereof, the foregoing contribution and exchange
transactions are collectively referred to herein as the “Rollover.”
1.4 Legends, etc. All certificates (if any) representing Exchange Equity issued
pursuant to any Person in connection with the Transaction and the Parent Common Stock and Preferred
Stock issued by Parent to LGP at the Effective Time shall be endorsed with the following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR STATE SECURITIES LAWS AND CANNOT BE OFFERED,
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SOLD, OR TRANSFERRED IN THE ABSENCE OF REGISTRATION OR EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS AND REGULATIONS PROMULGATED THEREUNDER. THE SHARES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED BY THE REGISTERED
OWNER HEREOF FOR INVESTMENT AND NOT WITH A VIEW TO OR FOR SALE IN
CONNECTION WITH ANY DISTRIBUTION THEREOF IN VIOLATION OF THE
SECURITIES ACT. THE SHARES MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR
ASSIGNED EXCEPT IN A TRANSACTION WHICH IS EXEMPT FROM REGISTRATION
UNDER THE PROVISIONS OF THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS, OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
OR IN A TRANSACTION OTHERWISE IN COMPLIANCE WITH APPLICABLE FEDERAL
AND STATE SECURITIES LAWS.
THESE SHARES SHALL NOT BE TRANSFERRED EXCEPT IN ACCORDANCE WITH THAT
CERTAIN STOCKHOLDERS AGREEMENT AMONG THE CORPORATION AND ITS
STOCKHOLDERS.
1.5 Termination. This Agreement shall be void and of no force and effect and all
rights and obligations of the Parties hereunder shall terminate without any further liability on
the part of any Party in respect thereof upon the earliest to occur of (i) such date and time as
the Merger Agreement shall be terminated pursuant to Article VIII thereof or otherwise, (ii) upon
the mutual written agreement of each of the Parties hereto to terminate this Agreement, (iii) upon
the occurrence of a Company Adverse Recommendation Change in response to a Superior Proposal or
(iv) upon the occurrence of a Change of Recommendation in response to an Intervening Event;
provided, that nothing herein will relieve any Party from liability for any willful breach
hereof prior to the time of termination, and each Party will be entitled to any remedies at law or
in equity to recover Losses arising from such breach.
| II. | PARENT REPRESENTATIONS, WARRANTIES AND AGREEMENTS |
2.1 Representations and Warranties. In connection with Parent’s issuance of the
Exchange Equity in connection with the Rollover pursuant to the terms and conditions of
Section 1.3 above, Parent represents and warrants to each Investor as of the Effective Time
as follows:
(a) Organization; Good Standing. Parent (i) has been duly organized,
is validly existing and is in good standing under the laws of the jurisdiction of
its incorporation; (ii) has the requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being conducted
(or otherwise contemplated); and (iii) is duly qualified to transact business and is
in
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good standing as a foreign corporation in all jurisdictions where it is
required to be so qualified, except where the lack of such qualification,
individually or in the aggregate, would not be material.
(b) Authorization, etc. Parent has the full power and authority to
execute, deliver and perform this Agreement and to issue the Exchange Equity
hereunder, and the issuance of the Exchange Equity and Parent’s execution, delivery
and performance of this Agreement has been authorized by all necessary action on its
behalf, and this Agreement is its legal, valid and binding obligation, enforceable
against it in accordance with this Agreement’s terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights in general and subject to general
principles of equity.
(c) Authorization of Shares. The Exchange Equity, when issued pursuant
to the terms of this Agreement, will be duly authorized, validly issued and
outstanding, fully paid, nonassessable and free and clear of all pledges, liens,
encumbrances and restrictions, other than as applicable to the Exchange Equity or
the holders thereof under the Stockholders Agreement.
(d) Consideration per Share. The Investors will acquire shares of
Parent Common Stock pursuant to this Agreement for the same price per share as the
funds advised by or affiliated with LGP are acquiring their shares of Parent Common
Stock in connection with the Transaction.
| III. | INVESTORS’ REPRESENTATIONS, WARRANTIES, AGREEMENTS, ACKNOWLEDGEMENTS AND COVENANTS |
3.1 Representations and Warranties. In connection with the contribution by each
Investor of its Rollover Common Value, the receipt by such Investor of Exchange Equity in
accordance with the terms and conditions of this Agreement, and the other transactions related to
the Rollover contemplated hereby, each Investor severally as to itself only represents and warrants
to Parent as of the Effective Time as follows:
(a) Investment Intention; Securities Laws. Such Investor agrees that
it will not, directly or indirectly, offer, transfer, sell, pledge, hypothecate or
otherwise dispose of any of the Exchange Equity, except in compliance with the terms
of the legend set forth in Section 1.4 herein and the Stockholders
Agreement. Such Investor (a) understands and has taken cognizance of all the risk
factors related to the investment in Parent, (b) has been granted the opportunity to
ask questions of, and receive satisfactory answers from, representatives of Parent
concerning the terms and conditions of the investment in Parent and has had the
opportunity to obtain and has obtained any additional information that it deems
necessary regarding the investment in Parent, and (c) has relied solely upon (i) the
representations set forth in this Agreement and (ii) its own independent
investigations or investigations conducted by its own independent advisers in
connection with the accuracy or sufficiency of such
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information or its investment decision. Such Investor acknowledges that the
investment in Parent is intended to be exempt from registration by virtue of
Section 4(2) of the Securities Act. Such Investor has the financial ability to bear
the economic risk of this investment. Such Investor is acquiring the Exchange
Equity solely for its own account, for investment and not with a view toward resale
or other distribution in violation of the Act, and such Investor understands that
such Exchange Equity may not be disposed of by such Investor in contravention of
Parent’s Certificate of Incorporation, Bylaws, the Stockholders Agreement, the
Securities Act, or any applicable state securities laws.
(b) Accredited Investor. Such Investor represents and warrants that it
is an “accredited investor,” as that term is defined in Regulation D under the Act,
with such knowledge and experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an investment in the Exchange
Equity.
(c) Authorization of Acquisition, etc. Such Investor represents and
warrants that it has the full power and authority to execute, deliver and perform
this Agreement and to acquire the Exchange Equity issued to it hereunder. Such
Investor further represents and warrants that the acquisition of the Exchange Equity
and such Investor’s execution, delivery and performance of this Agreement have been
authorized by all necessary action on such Investor’s behalf, and this Agreement is
such Investor’s legal, valid and binding obligation, enforceable against it in
accordance with this Agreement’s terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors’ rights in general and subject to general principles of
equity.
(d) Compliance with Laws and Other Instruments. Such Investor
represents and warrants that the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby and the performance of each
obligation of such Investor hereunder will not conflict with, or result in any
violation of or default under, any provision of any governing instrument applicable
to such Investor, or any agreement or other instrument to which such Investor is a
party or by which such Investor or any of its properties are bound, or any permit,
franchise, judgment, decree, statute, order, rule or regulation applicable to such
Investor or its business.
(e) Contributed Shares. Such Investor represents and warrants that
(i) it is the sole record and beneficial owner of the Contributed Shares held by
such Investor, free and clear of any encumbrances and (ii) it is not a party to, or
bound by, any agreement, arrangement, contract, instrument or order (other than the
Voting Agreement and this Agreement) relating to (w) the grant of pre-emptive rights
to purchase or obtain any equity interests in the Company, (x) the sale, repurchase,
assignment or other transfer of any capital stock or equity securities of the
Company, (y) the receipt of dividends, proxy rights or voting rights of any capital
stock or other equity securities of the Company or (z) rights
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to registration under the Securities Act or the Securities Exchange Act of
1934, as amended, or any capital stock or equity securities of the Company. Upon
the consummation of the contribution transactions contemplated by this Agreement and
subject to the consummation of the Transaction, Parent will acquire such Investor’s
Contributed Shares free and clear of any restrictions on transfer (other than such
restrictions under the Stockholders Agreement, under applicable federal and state
securities laws and state community property laws), taxes, liens, encumbrances,
claims or demands, other than liens or encumbrances created or expressly permitted
by Parent.
(f) Litigation. As of the date hereof, there is no civil, criminal or
administrative suit, action, proceeding, arbitration, investigation, review or
inquiry pending or, to such Investor’s knowledge, threatened against or affecting
the Investor or any of its properties or rights that reasonably could prevent such
Investor from performing its obligations under this Agreement or under the Voting
Agreement, nor is there any judgment, decree, injunction, rule or order of any
Governmental Authority or arbitrator outstanding against or affecting the Investor
or any of its respective properties or rights that reasonably could prevent such
Investor from performing its obligations under this Agreement or under the Voting
Agreement.
3.2 Acknowledgements and Covenants. In connection with the contribution by each
respective Investor to Parent of the Rollover Common Value, the receipt by such Investor of
Exchange Equity in accordance with the terms and conditions of this Agreement, and the other
transactions related to the Rollover contemplated hereby, each Investor severally acknowledges,
covenants and agrees as to itself only as follows:
(a) None of this Agreement (or any term or provision hereof), the issuance of
the Exchange Equity, or any other transaction comprising the Rollover creates any
employee/employer relationship or other similar relationship between Parent, the
Company or any of their respective Subsidiaries or any of Parent’s or Parent’s
Affiliates, on the one hand, and such Investor, on the other hand.
(b) The rights and obligations of such Investor with respect to its Exchange
Equity received pursuant to this Agreement, including in respect of voting and
transfer rights, shall be as provided under applicable law and as set forth in
Parent’s Certificate of Incorporation (which is attached hereto as
Exhibit C), Parent’s Bylaws (which are attached hereto as Exhibit D)
and the Stockholders Agreement, as each such document may be amended from time to
time in accordance with its terms. It is hereby acknowledged and agreed that
Parent’s Certificate of Incorporation shall be amended on or prior to the Effective
Time to add a certificate of designation for the Preferred Stock substantially, in
all material respects, as attached hereto as Exhibit A.
(c) Other than as contemplated by the Rollover, such Investor agrees not to
sell or otherwise transfer any of its Contributed Shares or sell any other equity
interests, options, warrants, calls, subscriptions or other rights in any of its
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Contributed Shares from the time the Investor executes this Agreement until the
earlier of (i) the Effective Time or (ii) the date this Agreement terminates in
accordance with its terms; provided, however, that each such
Investor may transfer Contributed Shares to a Family Member or trust for the benefit
of such Investor or his Family Members (and in the case of a Investor that is a
trust, the Contributed Shares held in such trust may be transferred to any
beneficiary thereof, any Family Member of any such beneficiary, or to any trust for
the benefit of any such beneficiary or any such Family Member) for estate or tax
planning purposes; provided, that, as a condition to any such transfer, the
transferee agrees in writing to be bound by the terms of this Agreement applicable
to such Investor and to hold such Contributed Shares subject to all the terms and
provisions of this Agreement to the same extent as such terms and provisions bound
the Investor from whom the Contributed Shares were transferred. For purposes of
this Agreement a “Family Member” of an individual shall include any member
of the class consisting of that individual’s spouse, descendants (whether by blood,
marriage or adoption, and their respective descendants by blood, marriage or
adoption), parents (including adoptive parents or in-laws), siblings (whether by
blood, marriage or adoption), or the spouse of any such descendant, parent or
sibling.
(d) Such Investor understands and agrees that all Company Stock Options (as
defined in the Merger Agreement) held by such Investor shall be treated in the
Transaction as set forth in Section 2.1(d)of the Merger Agreement, and such
Investor consents to such treatment.
3.3 Spousal Consent. Each respective Investor’s spouse shall be required to execute
the form of spousal consent set forth in Exhibit E to evidence such spouse’s agreement and
consent to be bound by the terms and conditions of this Agreement and the Stockholders Agreement as
to such spouse’s interest, whether as community property or otherwise, if any, in such Investor’s
Contributed Shares, the Contributed Amount, if any, and the Exchange Equity issued to such
Investor.
| IV. | EFFORTS |
4.1 Each Party hereby agrees to take, or cause to be taken, all actions, and do, or cause to
be done, and to assist and cooperate with the other Party in doing all things necessary, proper or
advisable under applicable Laws, to consummate and make effective, the Rollover and the other
transactions contemplated hereunder (including, without limitation, Section 3.2(d)).
| V. | MISCELLANEOUS |
5.1 Notices. All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be deemed to have been given if delivered
personally or sent by facsimile, overnight courier, or certified mail, return receipt requested,
postage prepaid, to the Parties to this Agreement at the following addresses or to such other
address as either Party to this Agreement shall specify by notice to the other:
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If to Parent:
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Ivy Holdings Inc. c/o Xxxxxxx Xxxxx & Partners, L.P. 00000 Xxxxx Xxxxxx Xxxx., #0000 Xxx Xxxxxxx, XX 00000 Attention: Xxxx Xxxxxx Facsimile: (000) 000-0000 |
|
with a copy to:
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Xxxxxx & Xxxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxx Xxxxx Xxxx Xxxxxxxxxxxx Facsimile: (000) 000-0000 |
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If to an Investor:
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At the addresses set forth on the attached signature pages |
All such notices and communications shall be deemed to have been received on the earlier of (i) the
date of delivery and (ii) the third business day after the mailing thereof.
5.2 Binding Effect; Benefits. This Agreement shall be binding upon and inure to the
benefit of the Parties to this Agreement and their respective successors and permitted assigns.
Nothing in this Agreement, express or implied, is intended or shall be construed to give any person
other than the Parties to this Agreement or their respective spouses, successors or assigns any
legal or equitable right, remedy or claim under or in respect of any agreement or any provision
contained herein.
5.3 Waiver. Each Party hereto may by written notice to any another Party (a) extend
the time for the performance of any of the obligations or other actions of the other Party under
this Agreement; (b) waive compliance with any of the representations, warranties, acknowledgements
or covenants of the other Party contained in this Agreement; and (c) waive or modify performance of
any of the obligations of the other Party under this Agreement; provided that any such
extensions, waivers or modifications shall only be effective against the Party giving the same.
For the avoidance of doubt, representations and warranties herein are made as of the Effective Time
unless otherwise stated herein. Except as provided in the first sentence of this
Section 5.3, no action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party
taking such action of compliance with any representations, warranties, covenants or agreements
contained herein. Except as provided in the first sentence of this Section 5.3, the waiver
by any Party hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver by such waiving Party of any preceding or succeeding breach and no failure by
any Party to exercise any right or privilege hereunder shall be deemed a waiver of such Party’s
rights or privileges hereunder or shall be deemed a waiver of such Party’s rights to exercise the
same rights at any subsequent time or times in any other context.
5.4 Amendment. This Agreement may be amended, modified or supplemented only by a
written instrument executed by each of the Investors and Parent.
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5.5 Assignability. Neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by any Investor except (a) by
will or by the laws of descent or distribution or (b) with the prior written consent of Parent;
provided, however, that, in addition to the amounts of Exchange Equity committed to
be acquired by the Investors pursuant to this Agreement as of the date hereof, the Parties agree
that Xxxxxx Xxx and Xxxxx Xxxxxx may in their discretion, prior to the Effective Time, offer to
other employees of the Company or its subsidiaries selected by Messrs. Xxx and Topper and
reasonably acceptable to Parent and LGP the opportunity to subscribe for additional Exchange Equity
in an aggregate amount of up to $4,501,000; provided, that as a condition to such
subscription each such employee must execute a counterpart signature page to this Agreement in the
form attached as Exhibit F hereto and agree to be bound by the terms hereof for all
purposes hereunder; provided, further, if Messrs. Xxx and Topper elect in their
discretion not to extend such other Exchange Equity subscription opportunities, or if any such
employees are offered such an opportunity but do not elect to (or qualify to) subscribe for some or
all of the available amount of Exchange Equity, the obligations and Exchange Equity subscription
obligations of the other Investors signatory hereto shall be unaffected. The Company shall update
Schedule I from time to time prior to the Effective Time to accurately reflect any
subscription elections from time to time extended to and accepted from such other employees.
5.6 Applicable Law; Consent to Jurisdiction. This Agreement and all disputes, claims
or controversies arising out of or relating to this agreement, or the negotiation, validity or
performance of this agreement, or the transactions contemplated by this agreement, shall be
governed by and construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Parties hereto hereby irrevocably and unconditionally
(i) consents to submit to the sole and exclusive jurisdiction of the Court of Chancery of the State
of Delaware or, if under applicable law exclusive jurisdiction over the matter is vested in the
federal courts, any court of the United States located in the State of Delaware, for any litigation
arising out of or relating to this Agreement, or the negotiation, validity or performance of this
Agreement, or the transactions contemplated hereby, (ii) agrees not to commence any litigation
relating thereto except in such courts, (iii) waives any objection to the laying of venue of any
such litigation in such courts and (iv) agrees not to plead or claim in such courts that such
litigation brought therein has been brought in any inconvenient forum. Each of the parties hereto
agrees, (x) to the extent such party is not otherwise subject to service of process in the State of
Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for
acceptance of legal process, and (y) that service of process may also be made on such party by
prepaid certified mail with a proof of mailing receipt validated by the United States Postal
Service constituting evidence of valid service. Service made pursuant to (x) or (y) above shall
have the same legal force and effect as if served upon such party personally within the State of
Delaware. For purposes of implementing the parties’ agreement to appoint and maintain an agent for
service of process in the State of Delaware, Parent does hereby appoint The Corporation Trust
Company, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 as such agent.
5.7 Severability. If any provision of this Agreement, or the application thereof to
any Party or circumstance is held invalid or unenforceable, the remainder of this Agreement, and
the application of such provision to other Parties or circumstances, shall not be affected thereby,
and to such end, the provisions of this Agreement are agreed to be severable.
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5.8 Entire Agreement. This Agreement and the schedules and exhibits and other
documents delivered by the Parties in connection herewith, the Merger Agreement, the Voting
Agreement and the Stockholders Agreement, (i) contain the complete agreement between the Parties
hereto with respect to the transactions contemplated hereby and thereby and supersede all prior
agreements and understandings between the Parties hereto with respect thereto and (ii) shall be
binding upon and inure to the benefit of the Parties hereto and their respective successor and
permitted assigns.
5.9 Section and Other Headings. The section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
5.10 Counterparts. This Agreement may be executed by facsimile or PDF signature and
in any number of counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
5.11 No Other Representations or Warranties. Except for the representations and
warranties contained in this Agreement, none of the Parties is making or have made any
representations or warranties of any sort to or for the benefit of any other Party with respect to
the Rollover, whether oral or written, express or implied, and the Parties expressly disclaim any
other representations and warranties.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, Parent and the Investors have executed this Agreement as of the day and
year first above written.
| IVY HOLDINGS INC. |
||||
| By: | /s/ Xxxx X. Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | President | |||
[Signature Page to Contribution and Subscription Agreement]
INVESTORS:
Address:
| By: | /s/ Xxxxxx Xxx | |||
| XXXXXX XXX | ||||
| Address: |
THE XXXXX & ALEXA TOPPER FAMILY TRUST |
|||
| By: | /s/ Xxxxx Xxxxxx | |||
| XXXXX XXXXXX, Trustee | ||||
| By: | /s/ Alexa Topper | |||
| ALEXA TOPPER, Trustee | ||||
Address:
| By: | /s/ Xxxx Xxxxxxx | |||
| XXXX XXXXXXX | ||||
Address:
| By: | /s/ Jeereddi X. Xxxxxx | |||
| DR. JEEREDDI X. XXXXXX | ||||
[Signature Page to Contribution and Subscription Agreement]
Schedule I
| Number of Shares of | ||||||||||||||||
| Contributed | Contributed | Parent Common Stock | ||||||||||||||
| Investor | Shares | Amount | to be Received | Total Amount | ||||||||||||
Xxxxxx Xxx* |
3,241,412 | $ | — | 275,520 | $ | 27,552,000 | ||||||||||
The Xxxxx
& Xxxxx Xxxxxx Family Trust |
2,454,118 | $ | — | 208,600 | $ | 20,860,000 | ||||||||||
Xxxx Xxxxxxx |
261,882 | $ | — | 22,260 | $ | 2,226,000 | ||||||||||
Dr. Jeereddi X. Xxxxxx |
197,765 | $ | — | 16,810 | $ | 1,681,000 | ||||||||||
| * | Xx. Xxx’x Rollover Common Value shall be increased by a cash amount equal to fifty percent (50%) of any bonus granted to Xx. Xxx by the Company pursuant to Section 5.1(j) of the Company Disclosure Schedule (the “Bonus Contribution”). Such increase in Rollover Common Value shall be in the form of an increase in the number of the Contributed Shares equal to the Bonus Contribution divided by the Per Share Merger Consideration. |
